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THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 


Thomas  M.  Storke, 
Regent 


wen 


Bowen  &  Bowen. 


'^"^-'-•-    -  -•    ^u'  ■    ■  ■  ■Miiksii.-iM 


LEADING  CASES 


UPON 


THE  LAW  OF  TORTS 


SELECTED    BY 


George  Chase,  LL.B. 

PROFESSOR    OF    LAW    IN    THE    NEW    YORK    LAW    SCHOOL,    NEW    YORK    CITY,    AND- 
DEAN    OF    THE    LAW    FACULTY 


ST.   PAUL,    MINN. 

WEST   PUBLISHING   CO. 

1892 


T 


CJOPYKIGHT,  1891, 
BY 

WEST  PUBLISHING  COMPAITX. 


PREFACE, 


This  collection  of  cases  upon  the  Law  of  Torts  is  intended  to  supplement  and  illus- 
trate the  statements  of  legal  principles  which  are  set  forth  in  the  various  treatises 
upon  this  subject.  Object  lessons,  showing  the  application  of  principles,  are  as  efh- 
cacious  in  the  study  of  law  as  in  the  study  of  other  branches  of  learning,  and  such 
lessons  are  afforded  by  the  actual  decisions  made  by  the  courts  in  specific  instances. 
Such  decisions  may  also  exhibit  the  growth  and  development  of  legal  doctrines. 
This  is  not  teaching  law  solely  by  the  reading  of  cases,  but  rather  using  the  cases  for 
the  purpose  of  illustration,  which  the  editor  believes  to  be  the  most  useful  and  bene- 
ficial method.  The  aim  has  been  to  select  the  most  valuable  and  important  cases 
that  could  be  found,  giving  a  comprehensive  view  of  the  particular  point  or  question 
discussed,  and  presenting  the  actual  living  law  of  to-day  as  the  result  of  the  long  pro- 
cess of  adjudication  in  England  and  in  this  country.  Hence  the  volume  comprises 
modern  cases  to  a  large  extent,  and  in  some  instances  these  are  among  the  most  re- 
cent that  have  been  issued.  This  fact,  it  is  believed,  will  render  the  book  of  service 
both  to  law  students  and  to  practitioners. 

A  word  of  caution  may  be  addressed  to  law  students  in  regard  to  the  study  of 
cases.  A  student  should  remember  carefully  that  judicial  decisions,  though  the}' 
may  be  "leading  cases"  and  the  most  valuable  that  can  be  found,  may  nevertheless 
contain  dicta,  and  that  he  must  discriminate  between  dicta  and  the  points  actually 
decided.  Moreover,  statements  of  general  principles,  as  set  forth  in  the  decisions, 
are  sometimes  made  too  broadly,  because  the  judge  has  his  mind  concentrated  upon 
the  questions  involved  in  the  particular  case  he  has  to  decide,  and  does  not  think  of 
the  possible  limitations  which  the  doctrine  may  need  to  arlapt  it  to  analogous  cases 
of  varied  character.  Still,  these  sources  of  error  are  less  likely  to  be  found  in  a  col- 
lection of  leading  cases,  containing  the  opinions  of  judges  of  eminence,  than  in  other 
instances.  And,  besides,  the  authors  of  the  best  text-books,  in  preparing  their  trea- 
tises, examine  and  comj)are  the  numerous  and  varied  cases  that  bear  upon  the  same 
points,  and  thus  are  able  to  set  forth  the  principles  of  law  in  their  true  and  accurate 
form,  properly  limited  and  classified.  This  is,  again,  another  important  reason  for 
studying  the  text-books  and  illustrative  cases  togetlier. 

The  cases  are  printed  in  the  same  general  form  in  which  they  appear  in  the  reg- 
ular reports,  viz.,  with  head-notes,  statements  of  lacts,  and  sometimes  arguments  of 
counsel,  pretixed  to  the  opinions.  Running  head-lines  in  bold-faced  type,  also,  di- 
rect the  attention  of  the  reader  to  the  principle  treated  of  in  the  particular  case  that 
lollows.  Numerous  other  valuable  cases  are  also  cited  after  each  of  those  that  are 
])rinted  in  full,  so  that  the  student  or  lawyer  can  extend  his  researches  more  widely, 
if  he  so  desires.  These  cited  cases  are  also  among  the  most  important  authorities 
upon  the  various  points  discussed. 

New  York,  October  12,  1S91.  G.  C. 

.    (iii)* 


TABLE  OF  CONTENTS. 


General  Principles,  1. 

No  tort  committed,  unless  a  legal  right  or  legal  duty  is  violated,  1. 

Tlie  violation  of  a  moral  right  or  duty,  unless  it  also  amounts  to  a  legal  right 
or  duty,  does  not  constitute  a  tort,  8. 

Illustration  of  tbe  establishment  of  legal  rights  by  the  common  law,  as,  e.g., 
in  the  decision  of  "cases  of  novel  impression,"  11. 

Illustration  of  ibe  creation  of  legal  rights  by  statute,  16. 

Injuria  sine  damno  gives  a  right  of  action,  18. 

Ex  damno  sine  injurid  non  oritur  actio,  23. 

In  some  classes  of  cases,  there  must  be  damage  sustained  in  order  that  there 
•  may  be  a  cause  of  action  for  tort,  28. 

In  actions  of  tort,  damages  may  be  awarded  for  the  proximate,  but  not  for 
the  remote,  consequences  of  the  tortious  act — Nature  of  this  distinc- 
tion, 32. 

Torts,  as  distinguished  from  crimes,  do  not,  in  general,  involve  a  wrongful 
intent,  49. 

Lunatics  liable  for  torts,  50. 

There  is,  however,  no  liability  in  tort  for  purely  accidental  injuries,  51. 

An  action  upon  tort  lies  for  the  breach  of  a  right  or  duty  created  by  law, 
even  though  the  performance  of  such  right  or  duty  may  have  been  as- 
sumed by  contract.  In  such  cases  the  plaintiff  may  either  sue  ex  con- 
tractu or  ex  delicto,  54. 

So  a  tort,  as  a  violation  of  legal  duty,  may  involve,  as  one  of  its  elements,  a 
breach  of  contract,  56. 

In  cases  of  contract,  where  no  legal  duty  arises  independent  of  contract,  one 
not  in  privity  with  the  defendant  cannot  recover  against  him  in  tort,  62. 

But  if,  in  cases  of  contract,  the  law  imposes  a  duty  towards  third  persons 
who  are  not  parties  to  the  contract,  such  persons  may  recover  in  an  ac- 
tion of  tort,  65. 

In  actions  of  tort  against  joint  tort-feasors,  the  damages  will  not  be  appor- 
tioned, 68. 

In  general,  no  right  of  contribution  exists  between  joint  tort-feasors,  6S. 

Assault  and  Battery,  70. 

Nature  of  an  assault — Diflference  between  a  civil  and  a  criminal  assault,  70. 
Effect  of  accompanying  words  indicating  that  there  is  no  intent  to  do  actual 
violence,  72. 

(i) 


ii  TABLE  OF  CO^^ TEXTS. 

Assault  and  Battery — Continued. 
Nature  of  a  battery,  72. 
Effect  of  consent,  74. 

Justifiable  and  excusable  assaults  and  batteries,  75. 
a.  Self-defense — Defense  of  property,  75. 
h.  Eightful  expulsion  by  carrier  of  passengers,  79. 

c.  Discipline  of  children,  pupils,  etc.,  80. 

d.  Act  of  public  officer  in  performance  of  official  duty,  81, 

False  Imprisonment,  82. 

What  constitutes  false  imprisonment,  82. 
Arrest  upon  void  process,  88. 
Arrest  upon  irregular  process — Difference  between  "irregularity"  and 

"error,"  90. 
Arrest  without  warrant,  where  a  warrant  is  by  law  necessary,  93. 

a.  In  cases  of  felony,  93. 

h.  In  cases  of  breach  of  the  peace,  96. 

Malicious  Prosecution,  98. 

Elements  of  Action — "Malice"  and  "probable  cause"  defined,  98. 
Effect  of  advice  of  counsel,  101. 
Termination  of  the  proceeding,  102. 
Malicious  prosecution  of  a  civil  action,  104. 
Malicious  abuse  of  process,  107. 

Conspiracy,  109. 

Slander  and  Libel,  ill. 
I.  Slander,  111. 

a.  Slander  per  se,  111. 

1.  Charge  of  crime,  111. 

2.  Charge  of  certain  contagious  diseases,  116. 

3.  Charge  affecting  a  man  in  his  office,  profession,  trade, 

employment,  etc.,  116. 
h.  Slander  with  special  damage,  121. 
n.  Libel,  124. 

III.  Malice  in  libel  and  slander,  128. 
IV.  Publication,  130. 
V.  Defense  of  "justification,"  132. 
VI.  Defense  of  "privileged  communication,"  136. 

1.  Qualified  privilege,  136. 

2.  Absolute  privilege,  145. 

VII.  Construction  of  words — Colloquium — Innuendo,  147. 
VIII.  Slander  of  title,  149. 

Trespass  to  Land,  150. 

I.  What  constitutes  a  trespass,  150. 
II.  Trespass  is  an  injury  to  the  possession,  154. 


TABLE  OF  CONTENTS.  Hi 

Trespass  to  Land — Continued. 

III.  Trespass  ah  initio,  155. 

IV.  Trespass  by  joint  tenant,  157. 

V.  Defenses: — License,  necessity,  etc.,  157. 

Nuisance,  164. 

I.  What  constitutes  a  nuisance — Prescriptive  right  to  maintain  a  nui- 
sance— Injunction  to  restrain,  164. 
II.  Examples  of  nuisances,  170. 

1.  Drainage  of  surface  waters,  170. 

2.  Diversion  and  detention  of  stream,  172. 

3.  Pollution  of  stream,  175. 

4.  Noise,  176. 

5.  Keeping  dangerous  substances,  17S. 

6.  Obstruction  of  highway,  180. 

III.  Who  responsible,  181. 

IV.  Private  injury  from  public  nuisance,  184. 
V.  Legalized  nuisance,  186. 

VI.  Abatement  of  nuisance,  189. 
Injuries  by  Animals,  191. 

Trespass  to  Personal  Property,  194. 

I.  What  constitutes  a  trespass,  194. 

II.  Is  an  injury  to  the  right  of  possession,  196. 

Conversion  of  Personal  Property,  197. 
I.   What  constitutes  conversion,  197. 

II.  Is  an  injury  to  the  right  of  possession,  201. 

III.  Conversion  by  joint  owner,  202. 

IV.  Demand  and  refusal  as  evidence  of  conversion,  203. 

Liability  of  Public  Officers  for  Official  Acts,  206. 

I.  Judicial  officers,  206. 

II.  Ministerial  Officers,  212. 

Criminal  Conversation  and  Seduction,  216. 

Negligence,  219. 

I.  Negligence  gives  a  cause  of  action  when  it  violates  a  legal  duty,  219. 

II.  Liability  for  negligence  contrasted  with  absolute  liability,  221. 

III.  Contributory  negligence,  223. 

1.  General  principle,  223. 

2.  Negligence  of  plaintiff  remote,  225. 

3.  Contributory  negligence  of  children  sui  juris,  226. 

4.  Imputation  of  negligence  to  children  non  sui  Juri.s — DiflFerent 

theories,  228. 

5.  Imputation  of  negligence  to  passenger — Former  English  doc- 

trine now  overruled,  233. 

6.  Effect  of  acting  under  stress  of  peril  to  human  life,  236. 


iv  TABLE  OF  CONTEXTS. 

Negligence — Continued. 

IV.  Liability  of  a  master  for  the  negligence  of  his  servant,  237. 
V.  Liability  of  an  employer  for  the  negligence  of  a  contractor,  240. 
VI.  Liability  of  master  to  his  servant,  242. 

Injury  Causing  Death,  247. 

Fraud  and  Deceit,  249. 

I.  Elements  of  action — Fraudulent  intent,  249. 

1.  English  rule,  249. 

2.  Massachusetts  rule,  257. 
XL  Fraud  by  silence,  258. 

III.  False  statements  as  to  matters  of  opinion,  260. 

IV.  False  statements  as  to  patent  or  obvious  defects,  263. 

Conflict  of  Laws  in  Regard  to  Torts,  265. 


CASES  REPORTED. 


Adams.  Forward  v.  (7  Wend.  204) 116 

Adams.  Proctor  V.  (113  Mass.  87t))  159 

Anthony,  Brettun  v.  (103  Mass.  37) 147 

Armorv  v.  Delamirie  (1  Strange,  505) 201 

Armstrong,  Mills  v.  (L.  R.  13  App.  Cas.  1)  233 
Armstrong  County  v.  Clarion   County  (66 

Pa.  St.  218) 68 

Ayers,  Carl  v.  (53  N.  Y.  14) 94 


Baker,  Moody  V.  (5  Cow.  351) 

Baltimore  City  Pass.  Ry.  Co.    v.  Kemp  (61 

Md.  619) 

Baltimore  &  P.    R.  Co.  v.  Jones  (95  U.  S. 

4:59) 

Barholt  v.  Wright  (45  Ohio  St.  177,  12  N.  E. 

Rep.  185) 

Barkley  v.  Wilcox  (86  N.  Y.  140) 

Beach.  Scribner  v.  (4  Uenio,  448) 

Beavan.  Webb  v.  (11  Q.  B.  Div.  609) 

Beecher,  Moulton  v.  (1  Abb.  N.  C.  193) 

Bernina,  The  (L.  R.  13  App.  Cas.  1) 

Bessey  v.  Olliot  (T.  Raym.  467) 

Belts.  Bump  v.  (19  Wend.  421) 

Bigaouette  v.  Paulet  (134  Mass.  123) 

Bird  V.  Jones  (7  Adol.  &  E.  [N.  S.]  *742). .. 

Boland.  Freeman  v.  (14  R.  I.  39) 

Borough  of  Pottsville,  Crosland  v.  (126  Pa. 

St.  511,  18  Atl  Rep.  15) 

Boulware  v.  Craddock  (30  Cal.  190) 

Bowen  v.  Hall  (6  Q.  B.  Div.  333) 

Bradley  v.  Fisher  (13  Wall.  335) 

Bradstreet.  Sunderlin  v.  (46  N.  Y.  188) 

Brame,  Mobile  Life  Ins.    Co.  v.  (95  U.    S. 

754) 

Brantley.  White  v.  (37  Ala.  430) 

Brettun  v.  Anthony  (103  Mass.  37) 

Bromage  v.  Prosser  (4  Barn.  &  C.  247) 

Brown>.  Kendall  (6  Cush.  292) 

Brown,  Lunt  v.  (13  Me.  236) 

Bump  V.  Betts(19  Wend.  421) 

Bvam  V.  Collins  (111  N.  Y.  143,  19  N.  E. 

Rep.  75) 

Campbell  v.  Race  (7  Cush.  408) 

Campbell  v.  Seaman   (63  N.  Y.  568) 

Cardival  v.  Smith  (109  Mass.  158)  

Carl  V.  Avers  (53  N.  Y.  14) 

Castle  V.  Houston  (19  Kan.  417) 

Chambers.  Clark  v.  (3  Q.  B.  Div.  327) 

Chapman  v.  State  (78  Ala.  4631 

Chase  v.  Whitlock  (3  Hill.  139) 

Chicago  &  R.  I.  R.  Co.,  Halligan  v.  (15  111. 

5.')><) 

City  of  Syracuse.  McCarthy  v.  (46  N.  Y.  194) 
Clarion  County,  Armstrong  County  v.  (66 

Pa.  St.  218) 

Clark  V.  Chambers  (3  Q.  B.  Div.  327) 

Clinton  v.  Mvers  (46  N.  Y.  511) 

Clow,  Dixon  V.  (24  Wend.  188) 

Cole  V.  Turner  (6  Mod.  149) 

Cole.  Dester  v.  (6  Wis.  320) 

Collins.  Byam  v.  (Ill  N.  Y.  143.  19  N.  E. 

Rep.  75) 

Columbia  Steam  >'av.  Co..  Leonard  v.  (84 

X.  Y.  48) 

Combs,  Lawrence  v.  (37  N.  U.  331) 


44 

54 

223 

74 
170 

75 
112 
103 
233 

49 
107 
216 

82 
200 

190 
214 
46 
206 
142 

247 
194 
147 
128 
51 
196 
107 

139 

160 

164 

102 
94 

132 
32 
70 

113 

154 
212 

68 
32 

172 
18 
72 

195 

139 

265 
163 


Page 
Commissioners    of    Asbury    Park,    Ocean 

Grove  Camp  Meeting  Ass'n  v.  (40  N.  J. 

Eq.  447,  3  Atl.  Rep.  168) 26 

Commonwealth  v.  Donahue  (148  Mass.  529, 

20  N.  E.  Rep.  171) 77 

Commonwealth  v.  O'Malley  (131  Mass.  423)    77 

Conirreve  v.  Smith  (18  N.  Y.  79) 180 

Coolidge,  Rice  v.  (121  Mass.  393) 13 

Craddock,  Boulware  v.  (30  Cal.  190) 214 

Crosland  V.  Borousrh  of  Pottsville  (126  Pa. 

St.  511,  18  Atl.  Rep.  15) 190 

Crow,  State  v.  (1  Ired.  Law,  375) 72 

Crown  Point  Iron  Co.,  Larmore  v.  (101  N. 

Y.  391,4  N.  E.  Rep.  752) 219 

Cutter,  Fresh  v.  (73  Md.  87,  20  Atl.  Rep. 

774) 136 

Danforth.  Hager  v.  (20  Barb.  16) 81 

Davis  V.  Mann  (10  Mees.  &  W.  .545) 225 

Davis,  Sawyer  v.  (136  Mass.  239) 186 

Delamirie,  Armory*  v.  (1  Strange.  505).  . . .  201 
Delaware.  L.  &  W.  R.  Co.,  Rounds  v.  (64 

N.  Y.  12!)) 287 

Dennis.  Frome  v.  (45  X.  J.  Law.  515) 199 

Derry  v.  Peek  (L.  R.  14  App.  Cas.  337).   ...  249 

Devendorf.  Weaver  v.  (3  Denio.  117) 211 

Devlin,  Morain  v.  (132  Mass.  87) 50 

Dexter  V.  Cole  (6  Wis.  320) 195 

Dixon  V.  Clow  (24  Wend.  188) 18 

Dole,  Van  Rensselaer  v.  (1  Johns.  Cas.  279)  115 
Donahue.  Commonwealth  v.  (148  Mass.  529, 

20  N.  E.  Rep.  171) 77 

Donnell,  Hatch  v.  (74  Me.  163) 150 

Dowdney,  Fowler  v.  (2  Moody  &  R.  119). . .  114 

Eckert  v.  Long  Island  R.  Co.  (43  K  Y.  502)  236 
Elliott,  Rogers  v.  (146  Mass.  349,  15  N.  E. 

Rep.  768) 176 

Engelhardt  v.  State  (88  Ala.  100,  7  South. 

Rep.  154) 73 

Engelhardt.  Homer  v.  (117  Mass.  539) 128 

Esmay  v.  Fanning  (9  Barb.  176) 203 

Fanning,  Esmay  v.  (9  Barb.  176) 203 

Ferguson,  Foshay  v.  (2  Denio,  617) 100 

Fischer  v.  Langbein  (103  N.  Y.  84,  8  N.  E. 

Rep.  251) 90 

Fisher,  Bradley  v.  (13  Wall.  335) 206 

Forward  v.  Adams  (7  Wend.  204) 116 

Foshay  v.  Ferguson  (2  Denio.  617) 100 

Fow  V.  Roberts  (108  Pa.  St.  489) 181 

Fowler  v.  Dowdnev  (2  Moody  &  R.  119). . .  114 
Francis.  Moore  v.  ("121  N.  Y.  199,  23  N.  E. 

Rep.  1127) 126 

Freeman  v.  Boland  (14  R.  L  39) 200 

Fresh  v.  Cutter  (73  Md.  87.  20  Atl.  Rep.  774)  136 

Frome  v.  Dennis  (45  N.  J.  Law,  515) 199 

Gelzenleuchter  v.  Niemeyer  (64  Wis.  316, 

25  N.  W.  Rep.  442) 88 

Giles  V.  Simonds  (15  Grav,  441) 157 

Gilman,  McDonough  v.  (3  Allen,  264) 182 

Glidden.  Pullen  v.  (66  Me.  202) 9i> 

Goklerman  v.  Stearns  (7  Grav,  181) 116 

Gordon  V.  Harper  (7  Term  R.  9) 20l 

Gorhamv.  Ives  (2  Wend.  534) II4 


(V) 


CASES  REPORTED. 


Pase 

Grain2:er  v.  Hill  (4  Bina:.  N.  C.  212). .    107 

Gramiich  v.  Wurst  (86  Pa.  St.  74) 5 

Grigsby  v.  Stapleton  (94  Mo.  423,  7  S.  W. 

Rep.  421 ) 258 

Guest  V.  Reynolds  (68  111.  478) 1 

Guille  V.  Swan  (19  Johns.  381) 49 

Hasrer  v.  Danf orth  (20  Barb.  16) 81 

Haeget,  Hobart  v.  (12  Me.  67) 195 

Hail,  Bowen  v.  (6  Q.  B.  Div.  333) 46 

Hall.  Murray  v.  (7  Man. .  G.  &  S.  441) 157 

Halligan  v.  Chicago  &,  R.  I.    R.  Co.  (15111. 

558) 154 

Hancock,  Thurston  v.  (12  Mass.  220) 23 

Harper,  Gordon  v.  (7  Term  R.  9) 201 

Harris.  Secor  V.  (18  Barb.  425)  119 

Hartfield  V.  Roper  (21  Wend.  615) 228 

Hatch  V.  Donnell  (74  Me.  163) 150 

Hayden,  Keegan  v.  (14  R.  I.  175) 68 

Heeg  V.  Licht(80N.  Y.  579) 178 

Heisel.  Quinn  v.  (40  Mich.  576) 96 

Hexamer  v.  Webb  (101  K  Y.   377.  4  N.  E. 

Rep.  755) 240 

Hickey  v.  Morrell  (102  N.   Y.  454,  7  N.  E. 

Rep.  321) 260 

Hill,  Grainger  v.  (4  Bing.  K  C.  212) 107 

Hobart  V.  Hagget(12Me.  67) 195 

Holley  V.  Mix,  (3  Wend.  350) 93 

Homer  v.  Engelhardt  (117  Mass.  539) 128 

Houston.  Castle  v.  (19  Kan.  417) 132 

Hutchinson,  Litchfield  v.  (117  Mass.  195). ..  257 

Illinois  Cent.  R.  Co.  v.  Whittemore  (43  111. 

420) 79 

Ireland  v.  McGarvish  (1  Sandf.  155) 118 

Ives,  Gorham  v.  (2  Wend.  534) 114 

Jones  V.  Williams  (11  Mees.  &  W.  176). ...  189 
Jones,  Baltimore  «fe  P.  R.  Co.  v.  (95  U.  S. 

43y) 223 

Jones,  Bird  v.  (7  Adol.  &  E.  [K  S.]  *742)..     82 

Keegan  v.  Hayden  (14  R.  I.  175) 68 

Keeiian  v.  Soiithworth  (110  Mass.  474) 214 

Kemp,  Baltimore  City  Pass.  Ry.  Co.  v.  (61 

Md.  619) 54 

Kellogg,  Milwaukee  &  St.  P.  Ry.  Co.  v.  (94 

IT.  S.469.) 41 

Kendall  V.  Stone  (5  N.  Y.  14) 149 

Kendall,  Brown  v.  (6  Cush.  292) 51 

King,  Singer  Manuf  g  Co.  v.  (14  R.  I.  511)  205 

Lamb  v.  Stone  (11  Pick.  526) 8 

Langbein,  Fischer  v.  (103  N.  Y.  84,  8  N.  E. 

Rep.   251) 90 

Larmore  v.  Crown  Point  Iron  Co.  (101  N. 

Y.  391,  4  N.  E.  Rep.  752) 219 

Laverty  v.  Snethen  (68  N.  Y.  522) 197 

Lawes     Chemical    Manure    Co.,    Western 

Counties  Manure  Co.  v.  (L.  R.  9  Exch. 

218) 11 

Lawrence  v.  Combs  (37  N.  H.  331) 163 

Leonard  v.  Columbia  Steam  Nav,  Co.  (84  N. 

Y.  48) 265 

Licht,  Heeg  v.  (SON.  Y.  579) 178 

Litchfield  v.  Hutchinson  (117  Mass.  195)...  257 

Lombard,  Merrifield  v.  (13  Allen,  16) 175 

Long  V.  Warren  (68  N.  Y.  426) 263 

Long  Island  R.  Co.,  Eckert  v.  (43  N.  Y. 

502) 236 

Lowory  v.  Manhattan  Ry.  Co.  (99  N.  Y. 

158,  1  N.  E.  Rep.  (108) 38 

Lunt  V.  Brown  (13  Me.  :i36) 196 

Lyke.  Van  Leuven  v.  (1  N.  Y.  515) 152 

Lynch  v.  Metropolitan  El.  Ry.  Co.  (90  N. 

Y.  77) 86 

McCarthy  v.  Citv  of  Syracuse  (46  N.  Y.  194)  212 
McDonough  v.  Oilman  (3  Allen,  264) 182 


Pflffe 

McGarvish,  Ireland  v.  (1  Sandf.  155) Hi 

McKesson,  Muller  v.  (73  N.  Y.  195) 191 

Manhattan  Ry.  Co.,  Lowery  v.  (99  N.  Y.  158, 

1  N.  E.  Rep.  608) 38 

Mann,  Davies  v.  (10  Mees.  &  W.  545) 225 

Manufacturers'  Nat.  Bank,  Moore  v.  (123  N. 

Y.  420,  25  N.  E.  Rep.  1048) 145 

Marshall  v.  Wei  wood  (38  N.  J.  Law,  339).  .  221 

Merrifield  v.  Lombard  (13  Allen.  16) 175 

Metropolitan  El.  Ry.  Co.,  Lynch  v.  (90  K 

Y.  77) 86 

Miller  v.  Milligan  (48  Barb.  30) 98 

Miller  v.  Woodhead  (104  N.  Y.  471, 11  N.  E. 

Rep.  57) 4 

Miller,  Young  v.  (3  Hill.  21) Ill 

Milligan,  Milter  V.  (48  Barb.  30) 98 

Mills  V.  Armstrong  (L.  R.  13  App.  Cas.  1). .  233 

Millward,  Mulvehall  v.  (11  N.  Y.  343)  218 

Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg  (94 

U.  S.  469) 41 

Mix,  Holley  v.  (3  Wend.  350)  93 

Mobile  Life  Ins.  Co.  v.  Brame  (95  U.  S.  754)  247 

Moody  V.  Baker  (5  Cow.  351) 44 

Moore  v.  Francis  (121  N.  Y.  199,  23  N.  E. 

Rep.  1127) 126 

Moore  v.  Manufacturers'  Nat.  Bank  (123  N. 

Y.  420,  25  N.  E.  Rep.  1048) 145 

Morain  v.  Devlin  (132  Mass.  87) 50 

Morgan  v.  Vale  of  Neath  Ry.  Co.  (5  Best  & 

S.  570,  L.  R.  1  Q.  B.  149) 244 

Morrell,  Hickey  v.  (102  N.  Y.  454,  7  N.  E. 

Rep.  321) 260 

Mortin  v.  Shoppee  (3  Carr.  &  P.  373) 71 

Moulton  V.  Beecher  (1  Abb.  N.  C.  193) 103 

Mulledy,  W^iilv  v.  (78  N.  Y.  310) 16 

Muller  v.  McKesson  (73  N.  Y.  195) 191 

Mulvehall  v.  Millward  (11  N.  Y.  343) 218 

Murray  v.  Hall  (7  Man..  G.  &  S.  441) 157 

Myers,  Clinton  v.  (46  N.  Y.  511) 172 

Myers,  Stephens  v.  (4  Carr.  &  P.  349) 71 

Newkirk  v.  Sabler  (9  Barb.  652) 151 

Newman  v.  Phillipsburg  HorseCar  R.  Co. 

(52  N.  J.  Law,  446,  19  Atl.  Rep.  1102).  . .  231 
New  York  Cent.  &  H.  R.  R.  Co.,  Rich  v.  (87 

N.  Y.  382) 56 

Niemeyer,  Gelzenleuchter  v.  (64  Wis.  316, 

25  N.  W.  Rep.  442) 88 

Ocean  Grove  Camp  Meeting  A.ss'n  v.  Com- 
missioners of  Asbury  Park  (40  N.  J.  Eq. 

447,  3  Atl.  Rep.  168) 2& 

Oliver,  Weld  V.  (21  Pick.  559) 202 

Olliot,  Bessey  v.  (T.  Raym.  467) 49 

O'Malley,  Commonwealth  v.  (131  Mass.  423)    77 

Pantzar  v.  Tilly  Foster  Min.  Co.  (99  N.  Y. 

368,  2  N.  E.  Rep.  24) 242 

Paulet,  Bigaouette  v.  (134  Mass.  123) 216 

Peek,  Derrv  v.  (L.  R.  14  App.  Cas.  337). ...  249 

People  v.  Warren  (5  Hill.  440) 216 

Phillips  V.  Trull  (11  Johns.  486) 97 

Phillipsburg  Horse-Car  R.  Co..  Newman  v. 

(52  N.  J.  Law.  446.  19  Atl.  Rep.  1102) 231 

Pollock,  Pope  v.  (46  Ohio  St.  367,  21  N.  E. 

Rep.  356) 104 

Pope  V.  Pollock  (46  Ohio  St.  367,  21  N.  E. 

Rep.  356) 104 

Portland  Manuf 'g  Co.,  Webb  v.  (3  Sumn. 

189) 19 

Proctor  V.  Adams  (113  Mass.  376) 159 

Prosser,  Bromage  v.  (4  Barn.  &  C.  247). . . .   128 

Pullen  V.  Glidden  (66  Me.  202) 99 

Pullman  v.  Walter  Hill  &  Co.  (  [1891]  1  Q. 

B.  524) 131 

Quinn  v.  Heisel  (40  Mich.  576) 96 

Race,  Campbell  v.  (7  Cush.  408) 160 


CASES  REPORTED. 


Vll 


Page 

Reynolds,  Guest  v.  (68  111.  478) 1 

Rice  V.  Coolid^e  (121  Mass.  393) 13 

Rich  V.  New  York  Cent.  &  H.  R.  R.  Co.  (87 

N.  Y.  382) 56 

Roberts  v.  Roberts  (5  Best  «fc  S.  384) 28 

Roberts,  Fow  v.  (108  Pa.  St.  489) 181 

Robbins,  Tillson  v.  (68  Me.  295) 124 

Rogers  v.  Elliott  (146  Mass.  349,  15  N.  E. 

Rep.  76-<) 176 

Roper.  Hartfield  v.  (21  Wend.  615) 228 

Rounds  V.  Delaware,  L.  &  W.  R.  Co.  (64  N. 

Y.  129) 237 

Sabler,  Xewkirk  v.  (9  Barb.  652) 151 

St.  Helen's  Smelting  Co.  v.  Tipping  (11  H. 

L.  Cas.  *642) 168 

Sample.  Walter  v.  (25  Pa.  St.  275) 101 

Sawyer  V.  Davis  (136  Mass.  239) 186 

Scribner  v.  Beach  (4Denio,  448) 75 

Seaman,  Campbell  v.  (63  N.  Y.  568) 164 

Secor  V.  Harris  (18  Barb.  425) 119 

Sheehan  v.   Sturges  (53  Conn.  481,   2  Atl. 

Rep.  841) 80 

Sheffill  V.  Van  Deusen  (13  Gray,  304) 130 

Shoppee,  Mortin  v.  (3  Carr.  &  P.  373) 71 

Simonds.  Giles  v.  (15  Gray,  441)  157 

Singer  Manuf'g  Co.  V.  King  (14 R.  I.  511). .  205 
Six  Carpenters'  Case  (8  Coke,  146a,  1  Smith, 

Lead.  Cas.  62 ) 155 

Smith  V.  Thackerah  (L.  R.  1  C.  P.  564) 30 

Smith,  Cardival  v.  (109  Mass.  158) 102 

Smith.  Congreve  v.  (18  X.  Y.  79) 180 

Snethen.  Laverty  v.  (68  X.  Y.  522) 197 

Souths  >rth.  Keenan  v.  (110  Mass.  474) 214 

Spencer.  Williams  v.  (5  Johns.  3.52) 161 

Stapleton,  Grigsby  v.  (94  Mo.  423,  7  S.  W. 

Rep.  421) 258 

State  V.  Crow  (1  Ired.  Law,  375) 72 

State,  Chapman  v.  (78  Ala.  463).  ..   70 

State.  Engelhardt  v.  (88  Ala.  100,  7  South. 

Rep.  154) 73 

Stearns,  Golderman  v.  (7  Grav,  181) 116 

Stephens  v.  Myers  (4  Carr.  &  P.  349) 71 

Stone,  Kendall  V.  (5  N.  Y.  14) 149 

Stone.  Lamb  v.  (11  Pick.  526) 8 

Sturges,  Sheehan  v.    (53   Conn.  481,  2  Atl. 

Rep.  841) 80 

Sunderlin  v.  Bradstreet  (46  N.  Y.  188) 142 

Swan,  Guille  v.  (19  Johns.  381) 49 

Terwilliger  v.  Wands  (17  X.  Y.  54) 121 

Thackerah.  Smith  v.  (L.  R.  1  C.  P.  564). ...     30 

Thomas  v.  Winchester  (6  X.  Y.  397) 65 

Thurston  v.  Hancock  (12  Mass.  220) 23 

Tillett  V.  Ward(10Q.  B.  Div.  17) 162 

Tillson  V.  Robbins  (68  Me.  295) 124 

Tillv  Foster  Min.  Co.,  Pantzar  v.  (99  N.  Y. 

368.  2  X.  E.  Rep.  24) 242 

Tipping,  St.  Helen's  Smelting  Co.  v.  (11  H. 

L.  Cas.  *642) 168 

Truax.  Vandenburgh  V.  (4  Denio,  464) 37 

Trull.  Phillips  V.  (11  Johns.  486) 97 

Turner,  Cole  v.  (6  Mod.  149) 72 

Twist  V.  Winona  &  St.  P.  R.  Co.  (39  Minn. 

164,  39  N.  W.  Rep.  402) 226 


Paee 

Upton  V.  Vail  (6  Johns.  181) 31 

Vail.  Upton  v.  (6  .Johns.  181 ) 31 

Vale  of  Neath  Ry.  Co.,  Morgan  v.  (5  Best 

&  S.  570.  L.  R.  1  Q.  B.  149) 244 

Van  Ankin  v.  Westfall  (14  Johns.  233) 113 

Vandenburgh  v.  Truax  (4  Denio,  464) 37 

Van  Deusen,  Sheffill  v.  (13  Gray,  304) 130 

Van  Horn  v.  Van  Horn  (.52  N.  J.  Law,  284, 

20  Atl.  Rep.  485) 109 

Van  Leuven  v.  Lyke  (1  N.  Y.  51.5) 152 

Van  Rensselaer  v.  Dole  (1  Johns.  Cas.  279)  115 

Walter  v.  Sample  (25  Pa.  St.  275) 101 

Walter  Hill  «fc  Co.,  Pullman  v.  (  [1891]  1  Q. 

j      B.  524) 131 

Wands,  Terwilliger  v.  (17  X.  Y.  54) 121 

Ward,  Tillett  v.  (10  Q.  B.  Div.  17) 162 

Ward,  Weaver  V.  (Hobart,  1:34) 49 

Warren,  Long  v.  (68  X.  Y.  426) 263 

Warren.  People  v.  (5  Hill,  440) 216 

Washburn  Iron  Co.,  Wesson  v.  (13  Allen,  95)  184 

Weaver  V.  Devendorf  (3  Denio,  117)  211 

Weaver  v.  Ward  (Hobart,  134) 49 

Webb  V.  Beavan  (11  Q.  B.  Div.  609) 112 

Webb  V.  Portland  Manuf'g  Co.  (3  Sumn. 

189) 19 

Webb,  Hexamer  v.  (101  X.  Y.  377,  4  X.  E. 

Rep.  755) 240 

Weld  V.  Oliver  (21  Pick. -5.59) 202 

Welsh  V.   Wilson  (34  Minn.  92,  24  N.    W. 

Rep.  327) 215 

Welwood,  Marshall  v.  (38  N.  J.  Law,  339). .  221 

Wesson  v.  Washburn  Iron  Co.  (13  Allen.  95)  184 
Western    Counties    Manure    Co.  v.  Lawes 

Chemical  Manure  Co.  (L.  R.  9  Exch.  218)  11 

Westfall,  Van  Ankin  v.  (14  Johns.  233) 113 

White  v.  Brantlev(37  Ala.  430) 194 

Whitlock,  Chase  v.  (3  Hill,  139) 113 

Whittemore,  Illinois  Cent.  R.  Co.  v.  (43  111. 

420) 79 

Wilcox.  Barkley  v.  (86  X.  Y.  140) 170 

Williams  v.  Spencer  (5  Johns.  352) 161 

Williams.  Jones  v.  (11  Mees.  &  W.  176) 189 

Willy  V.  Mulledv  (78  X.  Y.  310) 16 

Wilson.  Welsh  v.  (34  Minn.  92,  24  X.  W. 

Rep.  327) 215 

Wiman,  Woods  v.  (122  X.  Y.  445,  25  X.  E. 

Rep.  919) 144 

Winchester.  Thomas  v.  (6  X.  Y.  397) .  65 

Winona  &  St  P.  R.  Co..  Twist  v.  (39  Minn. 

164.  39  X.  W.  Rep.  402) 226 

Winterbottom  v.   Wright  (10  Mees.  «fe  W. 

109) 62 

Woodhead.  Miller  v.  (104  X.  Y.  471,  11  X. 

E.  Rep.  57)  4 

Woods  V.  Wiman  (122  X.  Y.  445,  25  X.  E. 

Rep.  919) 144 

Wright,  Barholt  v,  (45  Ohio  St.  177,  12  X. 

I      E.  Rep.  185) 74 

Wright,  Winterbottom  v.  (10  Mees.  &  W. 

109) 62 

Wurst,  Gramlich  v.  (86  Pa.  St.  74) 5 

Young  v.  Miller  (3  Hill,  21) ill 


OASES  CITED. 


[Titles  marked  by  a  dagger  (thus,  t)  refer  to  cases  cited  by  the  editor  and  authorities  cited  by 

counsel.] 


Psee 
Abbott  V.  Booth,  51  Barb.  546 90 

Abbott  V.  Macfie,  2  Hurl.  &  C.  744,  33  Law  J. 

Exch.  177 34 

tAbralh  v.  Railroad  Co.,  11  Q.  B,  Div.  440,  L. 

R.  11  App.  Cas.  247 101 

Absor  V.  French,  2  Show.  28 151,  160 

tAchorn  v.  Piper,  66  Iowa,  694,  24  N.  W.  Rep. 

513 128 

Achtenhagen  v.  City  of  Watertown,  18  Wis. 

831 227 

Acker  v.  Campbell,  23  Wend.  372 21.5 

Ackerley  v.  Parkinson,  3  Maule  «fe  S.  411 209 

Acton  V.  Blundell,  12  Mees.  &  W.  324 27,  172 

tAdams  V.  Marshall,  13S  xMass.  228,  238 15 

Adams  V.  Paige,  7  Pick.  542 8,  10,  11 

Adams  v.  Railway  Co.,  3  Ct.   Sess.   Cas.   (4th 

Ser.  1  215 235 

Adams  v.  Waggoner,  33  Ind.  531 73,  74 

tAdams  v.  Young,  44  Ohio  St.  80,  4  N.  E.  Rep. 

599 48 

Adamson  v.  Jarvis,  4  Bing.  66 69 

Adsit  V.  Brady.  4  Hill,  630 213 

tAhern  v.  Steele,  115  N.  Y.  203,  22  N.  E.  Rep. 

193 183 

tAlderson  v.  Maddison,  5  Exch.  Div.  296 11 

Aldred's  Case,  9  Coke,  58,  59 3,  25,  179 

Alexander  v.  Alexander,  9  Wend.  141 Ill 

tAlexander  v.  Church,   53  Conn.   561,  4   Atl. 

Rep.  103 2.57 

t Alexander  v.  Hard,  64  N.  Y.  228 155 

Alexander  v    Southey,  5  Barn.  &  Aid.  247 205 

tAlexander  v.  Swackhamer,  105  Ind.  81,  4  N. 

E.  Rep.  433;  5  N   E.  Rep.  908 201 

tAllen  V.  Crofoot,  5  Wend.  506 157  j 

tAllen  V.  Willard,  57  Pa.  St.  374 6  i 

tAllison  V.  Jack,  76  Iowa,  205,  40  N.  W.  Rep.  i 

811 257! 

tAllsop  V.  Allsop.  5  Hurl.  &  N.  534 28,  29  j 

tAmerican  Print-Works  v.  Lawrence,  23  N.  J. 

Law,  9,  590 159 

tAmerican  Union  Tel.  Co.  v.  Middleton,  80  N. 

Y.  408 153 

tAmy  V.  Supervisors,  11  Wall.  136 214 

tAnderson  V.  Arnold's  Ex'r,  79  Ky.  370 50 

Anderson  v.  State,  6  Baxt.  608 78 


Pag« 
Asser  v.  Finch,  2  Lev.  234 151 

tAtkinson  v.  Water-Works  Co.,  2  Exch.  Div. 

441  18 

Attorney  General  v.  Cleaver,  18  Ves.  211,  219 

165,166 
Attorney  General  v.  Telegraph  Co.,  30  Beav. 

287 166 

Attornev    General  v.  Wilson,  4    Jur.   1174,  1 

Craig'&P.  1 69 

Atwood  V.  Monger,  Style,  378 105 

Austin,  Case  of,  5  Ravvle,  204 210 

Austin  V.  Culpeper,  Skin.  124 125 

Austin  V.  Railway  Co.,  L.  R.  2  Q.  B.  442 56 

t  Austin  V.  Steam-Boat  Co. ,  43  N.  Y.  75 226 

Avery  v.  Maxwell,  4  N.  H.  36,  37 163 

t  Babcock  v.  Utter,  1  Abb.  Dec.  27 159 

Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503,  34  Law 

J.  Q.  B.  181 15,  30,  32 

tBacon  v.  Railroad  Co.,  55  Mich.  224,  21  N.  W. 

Rep.  324 133 

Bacon  v.  Towne,  4  Cash.  217,  218 95,  102 

Bacon  v.  Waters,  2  Allen,  400 102,  103 

tBagshaw  v.  Gaward,  Yelv.  96, 97,  Cro.  Jac.  148 

155,  156 

tBailey  v.  Bussing,  28  Conn.  455 69 

Baily  v.  Merrell,  3  Bulst.  95 251 

Baker  V.  Bolton,  1  Camp.  493 247 

Baldwin  v.  Hayden,  6  Conn.  453 76,  78 

Baldwin  V.  Weed,  17  Wend.  224 95 

Balkum  v.  State,  40  Ala.  671 70 

Ball  V.  Rav,  L.  R.  8  Cb.  App.  467 167 

Ballard  v.  Tomlinson,  26  Ch.  Div.  194 27 

Baltimore  &  O.  R.  Co.  v.  Blocher,  27  Md.  277, 

287 56 

tBaltimore  &  O.  R.  Co.  v.  Mulligan,  45  Md.  4>6  226 
tBaltimore  &  O.  R.  Co.  v.  Pumphrev,  59  Md.  390  56 
tBaltimore  &  O.  R.  Co.  v.  Schwindiing,  101  Pa. 

St.  25S S 

Baltimore  &  P.  R.  Co.  v.  Church,  108  U.  S.  317, 

2  Sup.  Ct.  Rep.  719 187,  1S9 

Baltimore  &  Y.  Turnpike  Road  v.  Boone,  45 

Md.  344 56 

Bamford  v.  Turnlev,  31  Law  J.  Q.  B.  286,  3 

Best  &  S.  66 165,  185 

Bancroft  v.  Cambridge,  126  Mass.  438-141 ..  186,  187 

Bankart  v.  Houghton,  27  Beav.  425 167 

Barber  v.  Rollinson,  1  Cromp.  &  M.  330 b9 

Barclay  v.  Commonwealth,  25  Pa.  St.  503 190 

Bareham  v.  Hall,  22  Law  T.  (N.  S.)  116 165 

Barker  v.  Bates.  13  Pick.  2.55 159 

tBarkley  v.  Wilcox.  19  Hun,  320 170 

Barns  v.  Graham,  4  Cow.  452 204 

Barnardiston  v.  Soame,  6  State  Tr.  1063, 1  East, 

5GS,  note 213 

Barnes  v.  McCrate.  32  Me.  442 14,  147 

Barnes  v.  Martin,  15  Wis.  240 78 

Barnes  v.  Ward,  9  C.  B.  392,  420 8 

+  Barr  v.  Boyles,  96  Pa.  St.  31 216 

t  Barr  v.  Moore,  b7  Pa.  St.  385 128 

Barron  v.  Alexander,  27  Mo.  rp30 259 

Barry  v.  Railway  Co.,  92  N.  Y.  '^89 220 

Bartholomew  v.  Hnrwinton,  '63  Conn.  408 189 

9,20,30,47,48,  235    Bartlett  v.  Gas-Light  Co.,  117  Mass.  533 51 

Ashley  v.  Dixon,  48  N.  Y.  430 248  I  fBartlett  v.  Hoyt,  29  N.  H.  317 202 


Andre  v.  Johnson,  6  Blackf.  375. 
tAndrew  v.  Deshler,  45  N.  J   Law.  167. 
Andrews  v.  Ludlow,  5  Pick.  32. 


r8 

150 
10 

tAngus  V.  Clifford,  [lb91.J  2  Ch.  Div.  449 2.57 

Angus  V.  Radin,  5  ]n.  J   " 


Law.  815 
tAnon.,  60  N.  Y.  262 

tAnthony  V.  Haneys,  8  Bing.  186 153 

Anthony  V.  Slaid,  11  Mete.  (Mass.)  290 248 

Arkwright  v.  Newbold,  17  Ch.  Div.  301 

250,  254 
Armstrong  v.  Railway  Co.,  L.  R.  10  Exch.  47 

233  235 

Arnold  v.  Clifford,  2  Sum.  238 .'    69 

Arundell  v.  White,  14  East,  216 103 

Ashbv  V.  White,  1  Salk.  21,  2  Ld.  Ray m.  938, 
9,53.  9.55;  6  Mod.  45,  .53;  Holt,  .524;  1  Smith, 
Lead.  Cas. 472 ;  1  Smith,  Lead.  Cas.  (othEd.) 
216;  1  Smith,  Lead.  Cas.  (8th  Ed.)  264 


(is) 


CASES  CITED. 


213 
203 


Bartlett  v.  Perkins,  13  Me.  87 154 

Bartlev  v.  Richtmyer,  4  N.  Y.  38 218 

Barton  v.  City  of  Syracuse,  37  Barb.  292,  36  N 

Y.  54 

Barton  v.  Williams,  5  Barn.  &  Aid.  395 

Bartonshill  Coal  Co.  v.  Reid,  3  Macq.  266,  275. . 

242,  246 

Barwell  v.  Brooks,  1  Law  T.  454 167 

tBascom  v.  Dempsey,  143  Mass.  409, 9  N.  E.  Rep. 

744 155 

+Bas4b6  v.  Matthews,  L.  R.  2  C.  P.  684 103 

Basely  v.  Clarkson,  3  Lev.  37 195 

tBassell  v.  Eimore,  48  N.  Y.  561 124 

tBatchelor  V.  Fortescue,  11  Q.  B.  Div.  474 220 

tBateman  v.  Lyall,  7  C.  B.  (N.  S.)  638 29 

Bates  V.  Conkling,  10  Wend.  389 204 

Battishillv.  Reed,  18  C.  B.  (N.  S.)  696 167 

Baumv.  Clause,  5  Hill,  196 136 

tBaxter  v.  Doe,  142  Mass.  558,  8  N.  E.  Rep.  415. .     18 

Bayly  v.  Merrel,  Cro.  Jac.  386 264 

Bavnes  v.  Brewster,  2  Q.  B.  384 97 

t  Beach  v.  Hancock,  27  N.  H.  223 71 

Beach  v.  Ranney,  2  Hill,  309,  314. . .  122,  123, 149,  150 

Beach  v.  Steam-Boat  Co. ,  30  Barb.  433 266 

Beal  V.  Finch,  11  N.  Y.  128 68 

Bealey  V.  Shaw,  6  East,  208 21,  22 

Beard  V.  Murphv,  37  Vt.  99 190 

Beardmore  v.  Tredwell,  31  Law  J.  Ch.  892 165 

Beardsley  v.  Beardsley,  5  Blatchf .  498 144 

tBeare  &  Hodge's  Case,  Litt.  R.  34;  Het.  16..,  156 

Beatv  V.  Perkins,  6  Wend.  382 89 

Beauchamp  v.  Mining  Co.,  50  Mich.  163 55 

Beauchampe  v.  Croft,  Keilw.  26 105 

Bebinger  V.  Sweet,  1  Abb.  N.  C.  263 61,  108 

Beck  V.  Carter,  68  N.  Y.  283 220 

-I-  Beckham  v.  Hillier,  47  N.  J.  Law,  12 228 

Beckwith  v.  Shordike,  4  Burrows,  2092 1.53 

Bedingfield  v.  Onslow,  3  Lev.  209 154 

Beeler  v.  Jackson,  64  Md.  593,  2  Atl.  Rep.  916..  137 

Behrens  v.  McKenzie,  23  Iowa,  333,  343 51 

Bell  V.  Hanslev,  3  Jones,  (N.  C.)  131 74 

Bell  V.  Morrison,  27  Miss.  68 68 

Bell  V.  Stone,  1  Bos.  &  P.  331 125 

+  Belief ontaine  &  I.  R.  Co.  v.  Snyder,  18  Ohio 

St.  408 233 

Bemis  v.  Upham,  13  Pick.  169 ,  176 

t  Beninger  v.  Corwin,  24  L.  J.  Law,  257 260 

Benton  v.  Pratt,  2  Wend.  385 32,  61 

Bentz  V.  Armstrong,  8  Watts  &  S.  40 171 

t  Benzing  v.  Steinway,  101  N.  Y.  547,  5  N.  £. 

Rep.  449 244 

Berry  v.  Fletcher,  1  Dill.  67,  71 68 


Page 
tBohan  v.  Gas-Light  Co.,  122  N.  Y.  18,  25  N.  E. 

Rep.  246 170 

Bolingbroke  v.  Board,  L.  R.  9  C.  P.  575 238 

Bolivar  Manuf'g  Co.  v.  Neponset  Manuf'g  Co., 

16  Pick.  241 21 

tBonomi  v.  Backhouse,  El.  Bl.  &  El.  622,  646;  27 

Law  J.  Q.  B.  378 ;  28  Law  J.  Q.  B.  378 15,  30 

tBoorman  v.  Brown,  3  Q.  B.  511, 11  Clark  &  F. 

1 56 

Booth  v.  Railroad  Co.,  73  N.  Y.  40 242-244 

Bostwick  v.  Lewis,  2  Day,  447 13,  14 

Boulter  V.  Clark,  Bull.  N.  P.  16 74 

Bourden  v.  AUoway,  11  Mod.  180 90 

tBowden  v.  Lewis,  13  R.  L  189 191 

tBowen  v.  Fenner,  40  Barb.  383 202 

Bowen  v.  Hall,  6  Q.  B.  Div.  333 110 

Bowen  v.  Matheson,  14  Allen,  499 14 

t  Bowen  v.  Railroad  Co.,  59  Conn.  364,  21  Atl. 

Rep.  1073 225 

Bower  v.  Hill,  1  Bing.  N.  C.  .549  21 

Bowlsby  V.  Speer,  31  N.  J.  Law,  351 171,  172 

Bo  wring  v.  Stevens,  2  Car.  &  P.  337 264 

Boyce  v.  Brockway,  31  N.  Y.  490 .50,  198 

tBoyce  v.  Railroad  Co.,  63  Iowa,  70,  18  N.  W. 

Rep.  673 267 

+  Boyd  V.  Conklin,  54  Mich.  583,  20  N.  W.  Rep. 

595 172 

Brace  V.  Yale,  10  Allen,  441 174 

Bradley,  Ex  parte,  7  Wall.  36+ 207 

t  Bradley  v.  Cramer,  .59  Wis.  309,  18  N.  W.  Rep. 

268 128 

•t- Bradley  V.  Fuller,  118  Mass.  2H9 11 

Bradley's  Fish  Co.  v.  Dudlev,  ::!7  Coun.  136....  167 

Bradt  v.  Towslev,  13  Wend.  2.Vi 124 

Brady  v.  Weeks',  3  Barb.  157,  1.59 167,  179 

Brailey  v.  Southborough.  6  Cush.  141 161 

Brainard  v.  Railroad  Co.,  7  Cush.  5U6,  511 184 

+  Brand  v.  Hinchman,  68   Mich.  590,  36  N.  W. 

Rep.  664 106 

Brand  v.  Railway,  L.  R.  1  Q.  B.  130,  L.  R.  2  Q. 

B.  223,  L.  R.  4  H.  L.  171 187 

+  Brayton  v.  Fall  River,  113  Mass.  218 185 

Bretherton  v.  Wood,  3  Brod.  &  B.  54 55,  .56 

Brian  v.  Cockman.  Cro.  Car.  322 45 

+  Brick  V.  Railroad  Co.,  98  N.  Y.  211 247 

Brickell  v.  Railroad  Co.  120  N.  Y.  290,  24  N   E. 

Rep.  449 236 

tBrickell  v.  Railroad  Co.,  120  N.  Y.  290,  24  N. 

E.  Rep.  449 236 

Bridge  v.  Railway  Co.,  3  Mees.  &  W.  244,  246.. 

224   225  235 
Bridge  Co.  v.  United  States,  105  U.  S.  470,  4  ■«()..'  189 

Berry  v.  Vantries^  12  Serg.  &  R.  89 205  i  +  Briggs  v.  Garrett,  1 11  Pa.  St.  404,  2  Atl.  Rep. 

Besson  v.  Southard,  10  N.  Y.  236 98,  99  I     513 145 

Beswick  v.  Cunden,  Cro.  Eliz.  520 182  !  Brightman  v.  Fairhaven,  7  Gray,  271 184 

Betts  v.  Gibbins,  2  Adol.  &  E.  57 69 

Bicknell  V.  Dorion,  16  Pick.  478,  487 103 

Bigelow  V.  Stearns,  19  Johns.  39 212 

tBillingsley  v.  White,  59  Pa.  St.  469 197 

Bird  V.  Holbrook,  4  Bing.  628 34,  193,  220 

Bird  V.  Randall,  3  Burrows,  1345,  1354 45,  150 

tBishop  V.  Ely,  9  Johns.  294 37 

tBishop  V.  Ranney,  59  Vt.  316,  7  Atl.  Rep.  820    71 

Bishop  V.  Williamson,  11  Me.  49.5 214 

Bitz  V.  Meyer,  40  N.  J.  Law,  252 105 

-fBixby  V.  Dunlap,  22  Amer.  Rep.  475 47 

Blackman  v.  Simmons,  3  Car.  &  P.  138  . . .  .192,  193 
Blades  v.  Higgs,  10  C.  B.  (N.  S.)  713;  12  C.  B. 
(N.  S.)  501;  13  C.  B.  (N.  S.)  844;  11  H.  L. 

Cas.  621 78 

tBlagge  v.  Ilsley,  127  Mass  191 219 

tBlaisdellv.  Railroad  Co.,  51  N.  H.  485 159 

Blake  V.  Barnard,  9  Car.  &  P.  626 71 

Blake  V.  Ferris,  5  N.  Y.  58 241  , 

Blake  v.  Jerome,  14  Johns.  406 152 

Blanchard  v.  Baker,  S  Greenl.  253,  266,  268.  270 

21-23 

Blavmire  v.  Haley,  6  Mees.  &  W.  55  218 

-t-Blodgett  V.  Stone,  60  N.  H.  167 23 

Blood  V.  Railroad  Corp.,  2  Grav,  140 184 

Bloodworth  v.  Grav,  8  Scott,  N.  R.  11 116 

Bloss  V.  Tobey,  2  Pick.  320 149 

Blvth  V.  Topham,  Cro.  Jac.  1.58 7 

Blythe  v.  Tompkins,  2  Abb.  Pr.  468 90 

tBoard  of  Trade  Tel.  Co.  v.  Barnett,  107  111. 

507 153 

Bobb  V.  Bosworth,  Litt.  Sel.  Cas.  81 78 


Brill  V.  Flagler,  23  Wend.  3.54 175 

Brittain  v.  Kinnaird,  1  Brod.  &  B.  432 212 

Broadbent  v.  Gas  Co.,  7  De  Gex,  M.  &  G.  436. .  167 

Brock  V.  Copeland,  1  Esp.  203 193 

tBrock  V.  Stimson,108  Mass.  .520 157 

Brookerv.  Cofdn,  5  Johns.  168 Ill 

Brow  V.  Hathaway,  13  Allen,  239 138 

tBrown  v.  Boom  Co.,  109  Pa.  St.  57,  1  Atl.  Rep. 

156 53 

Brown  v.  Carpenter,  26  Vt.  638 192 

Brown  v.  Chadsey,  39  Barb.  260-263 90 

tBrown  v.  Collins,  .53  N.  H.  442 .53,  223 

tBrown  v.  De  Groff,  50  N.  J.  Law,  409,  14  Atl. 

Rep.  219 191 

Brown  v.  Dinsmoor,  3  N.  H.  103 154 

tBrown  v.  Howard,  14  Johns.  119 81 

Brown  v.  Howe,  9  Gray,  84,  85 51 

tBrown  v.  Leach,  107  Mass.  364 265 

tBrown  v.  Perkins.  1  Allen,  89,  12  Gray, 89.  .153,191 

Brown  v.  Railroad  Co.,  58  Me.  384 227 

tBrown  v.  Randall,  36  Conn.  56 103 

tBrown  v.  Robins,  4  Hurl.  &  N.  186,  28  Law  J. 

Exch.  250 30 

tBrown  v.  Watson,  47  Me.  161 185 

tBrowning  v.  Cover,  108  Pa.  St.  595 203 

Browniie  v.  Campbell,  L.  R.  5  App.  Cas.  925, 

935 250,  255 

tBruch  v.  Carter,  .32  N.  J.  Law,  554 196 

tBryan  v.  State,  44  Ga.  328 47 

Brydon  v.  Stewart,  2  Macq.  34 242 

tBuck  V.  Colbath,  3  Wall.  334 215 

Bulkeley  v.  Smith,  2  Duer,  261 98,  99 


CASES  CITED. 


Page 

BuUard  v.  Harrison,  4  Maule  &  S.  387,  393 lo(J 

tBullitt  V.  Farrar,  42  Minn.  8,  43  N.  W.  Rep. 

r,5ti 258 

Bullock  V.  Babcock.  3  Wend.  391,  393,  394..  51,  230 

Bump  V.  Belts,  19  Wend.  421 105 

tBunting  v.  Hogselt,  139  Pa.  St.  363,  21  AtL 

Rep.  31.  33,  34 48,  236 

Burckle  V.  Dock  Co.,  2  Hall,  151 229 

tBurgess  v.  Carpenter,  16  Amer.  Rep.  643 47 

tBurgessv.  Graffam,  IS  Fed.  Rep.  251 196 

Burland  V.  Board,  3  Best  &  S.  271 13 

Burlingame  v.  Bell,  16  Mass.  320 10 

tBuruet  V.  Wells,  12  Mod.  420 12 

Burns  v.  Erben,  40N.  Y.  403 90,  95 

Burrowes  v.  Lock,  10  Ves.  470 250 

Burrows  v.  Coke  Co.,  L.  R.  7  Exch.  96 35 

Bury  V.  Pope,  Cro.  Eliz.  118 3 

tBush  V.  Brainard,  1  Cow.  78,  and  note 162 

+Bush  V.  Sieinman,  1  Bos.  &  P.4(j5 25 

Butler  V.  Kent,  19  Johns.  228 150 

Butler  V.  Peck.  16  Ohio  St.  334 171 

Butterfield  v.  Forrester,  11  East,  60 224,  225 

tBuzzell  V.  Manufacturing  Co.,  48  Me.  113 244 

tBvam  V.  Bickford,  140  Mass.  31,  2  N.  E.  Rep. 

687 157 

tCahillv.  People,  106  111.  621 95 

Cairnes  v.  Bleecker,  12  Johns.  300 198 

tCalder  v.  Smalley,  66  Iowa,  219,  23  N.  W.  Rep. 

638 181 

tCaldwell  v.  Henry,  76  Mo.  254 257 

Call  V.  Allen,  1  Allen,  137 187 

tCallanan  v.  Oilman,  107  N.  Y.  360,  14  N.  E. 

Rep.  264 181 

Campbell  v.  Arnold,  1  Johns.  511 154 

Campbell  v.  Rickards,  5  Barn.  &  Adol.  846 43 

Campbell  v.  Seaman,  i)3  N.  Y.  568 179 

Campbell  v.  Stakes,  2  Wend.  137,  143 201,  230 

Canning  v.  Williamstown,  1  Cush.  451 161 

tCapital  and  Counties  Bank  v.  Henty,  L.  R.  7 

App.  Cas.  741 149 

Card  V.  Case,  .57  E.  C.  L.  622,  623,  note  b....l92,  193 

Cardwell  v.  McClelland,  3  Sneed,  150 259 

tCarey  v.  Rae,  58  Cal.  1.59 161 

tCarev  v.  Railroad  Co.,  1  Cush.  475 248 

tCarhart  v.  Gas-Light  Co.,  22  Barb.  297 176 

Carratt  v.  Morlev,  1  Q.  B.  18 89,  90 

Carroll  v.  Mix,  51  Barb.  212 205 

Carslake  v.  Mapledoram,  2  Term  R.  473 116 

Carter  V.  Andrews,  16  Pick.  1.  5.  9 113,  149 

Carter  v.  Boehm,  3  Burrows,  1905,  1913,  1914..  43 
tCarter  v.  Harden,  78  Me.  528,  7  Atl.  Rep.  392..    65 

Gary's  Case,  Poph.  207 117 

tCasey  v.  Smith,  152  Mass.  294,  25  N.  E.  Rep. 

734 233 

tCastor  V.  McShaffery,  48  Pa.  St.  437 202 

Catlin  V.  Valentine,  9'  Pai2:e,  575 166,  179 

tCattle  V.  Water- Works  Co.,  L.  R.  10  Q.  B.  453    47 

tCavanagh  v.  Dinsmore,  12  Hun,  465 239 

Cavey  v.  Ledbitter,  13  C.  B.  (N.  S.)  470 165 

Cawkwell  v.  Russell,  26  Law  J.  Exch.  34 ItO 

^Central  R.  Co.  of  New  Jersey  v.  Moore,  24  N. 

J.  Law,  824 225 

tChaflfee  v.  Pease,  10  Allen,  537 23 

Chambers  v.  Caulfield,  6  East,  244 21 7 

Champer  v.  State,  14  Ohio  St.  437 74,  75 

Chandler  v.  Thompson,  3  Camp.  .^2 3 

tChandler  v.  Walker,  21  N.  H.  282 1.55 

tChapman  v.  Allen,  Cro.  Car.  271,  272 156 

tChapman  v.  Cole,  12  Gray,  141 201 

Chapman  v.  State,  78  Ala.  463 50,  73 

Chapman  v.  '1  humblethorp,  Cro.  Eliz.  329 152 

Chase  v.  Corcoran,  106  Mass.  286,  2b8 159 

Chase  v.  Silverstone,  62  Me.  175 27 

Chasemore  v.  Richards,  7  H.  L.  Cas.  349, 5  Hurl. 

&  N.  982  27 

tChathara  Furnace  Co.  v.  Moffatt,  147 Mass.  403, 

18  N.  E.  Rep.  168 258 

Cheever  v.  Pearson,  16  Pick.  273 159 

Chenery  v.  Goodrich,  98  Mass.  224 149 

Cheney  v.  Railroad  Co.,  11  Mete.  (Mass.)  121..     79 

tChicago  V.  Robbins,  2  Black,  418 242 

Chicago,  B.  &  Q.  R.  Co.  v.  Parks,  18  111.  460. ..  79 
tChicago  City  Ry.  Co.  v.  Wilcox,  (111.  Sup.)  27 

N.  E.  Rep.  899 233 

tChicago,  M.  &  St.  P.  R.  Co.  v.  Ross,  112  U.  S. 

377,  5  Sup.  Ct.  Rep.  184 247 


Pa?e 
Chicaso,  R.  I.  &  P.  Ry.  Co.  v.  Eininger,  114  111. 

79.."^ 237 

Chicago  &  A.  R.  V.  Flagg,  43  111.  364 79 

tChicago  &  A.  R.  Co.  v.  Pennell,  110  111.  435. ..    48 

Chi  ffer's  Case.  T.  Ray m.  275,  276 78 

Child  V.  Affleck,  9  Barn.  &  C.  403 137 

Chilton  V.  Railway  Co.,  16  Mees.  &  W.  212.. ..     87 

tChrysler  v.  Canaday,  90  N.  Y.  272 262 

tChurchill  v.  Holt,  131  Mass.  67 69 

tCity  of  Chicago  v.  Building  Ass'n,  102  III.  379  185 

Claflin  V.  Carpenter,  4  Mete.  (Mass.)  580. 159 

Clapp  V.  Thaxter,  7  Gray,  384 189 

Clark  V.  Bales,  15  Ark.  452 68 

Clark  V.  Biuney,  2  Pick.  113,  116 125 

Clark  V.  Carlton,  IN.  H.  110 196 

Clark  V.  Cleveland,  6  Hill,  344 98,  103 

Clark  V.  Fitch,  2  Wend.  4.59 218 

Clark  V.  Foot,  8  Johns.  329 229 

tClark  V.  Miller.  54  N.  Y.  528 214 

Clark  V.  Montague,  1  Gray.  446,  448 103 

tClark  V.  Peckham.  10  R.  I.  35 185 

tClark  V.  Wilson,  14  R.  L  11 215 

tClarke  v.  Mav,  2  Gray,  410 212 

Clarke  v.  Roe^  4  Ir.  C.  L.  1 147 

Clark's  Case,  5  Coke,  64 87 

Clay  V.  Wood,  5  Esp.  44 230 

Clavards  v.  Dethick.  12  Q.  B.  439  224 

Clement  v.  Chi  vis,  9  Barn.  &  C.  1 72 125 

tCleveland  RoUing-Mill  Co.  v.  Corrigan,  (Ohio 

Sup.)  20  N.  E.  Rep.  466 228 

Clifford  V.  Brooke,  1.".  Ves.  1.33 32 

tClifford  V.  Cotton-Mills,  146  Mass.  47,  15  N.-  E. 

Rep.  84 183 

I  tClifford  v.  Dam,  81  N.  Y.  52 181 

Clinton  Bridge,  10  Wall.  4.54,  463 189 

Closson  V.  Staples,  42  Vt.  209 105 

Clowes  V.  Potteries  Co.,  L.  R.  8  Ch.  App.  125.. 

lt;6,  167 

Cockayne  v.  Hodgkisson,  5  Car.  &  P.  543 143 

Cockcroft  V.  Smith,  2  Salk.  642 76 

Codman  v.  Freeman,  3  Cush.  314 215 

Coffin  V.  Coffin,  4  Mass.  1 14.5 

Cosgs  V.  Bernard,  2  Ld.  Ravm.  909 60 

Coggswell  v.  Baldwin,  15  Vt.  4U4 193 

tCogswell  V.  Railroad  Co.,  103  N.  Y.  10, 8  N.  E 

Rep.  537 

tCohen  v.  Mayor,  etc.,  113  N.  Y.  532,  21  N.  E 

Rep.  700 

Colburn  v.  Patmore,  1  Cromp.,  M.  &  R.  73.... 

Colby  V.  Reynolds,  6  Vt.  489 125 

tCole  V.  Kegler,  64  Iowa,  59,  19  N.  W.  Rep.  843  191 

Coles  V.  Wright,  4  Taunt.  198 205 

Collins  V.  Commissioners,  L.  R.  4  C.  P.  279....     35 

Collins  V.  Malin,  Cro.  Car.  3>2 118 

tCoUins  V.  Railroad  Co.,  142  Mass.  301,  7  N.  E. 

Rep.  856 228 

tColrick  V.  Swinburne,  105  N.  Y.  503,  12  N.  E. 

Rep.  427 175 

Commonwealth  v.  Alger,  7  Cush.  53,  85 187 

Commonwealth  v.  Carey,  12  Cush.  246,  252. .  .95,  97 
Commonwealth  v.  Chemical  Works,  16  Gray, 

231-233 187 

Commonwealth  V.  Clark,  2  Mete.  (Mass.)  23,  25 

77,78 

Commonwealth  v.  CoUberg,  119  Mass.  350 73-75 

Commonwealth  v.  Devlin,  141  Mass.  423,  6  N. 

E.  Rep.  64 78 

Commonwealth  v.  Essex  Co.,  13  Gray,  239,  247  187 

tCommon wealth  v.  Eyre,  1  Serg.  &  R.  347 72 

Commonwealth  v.  Kennard,  8  Pick.  133 78 

Commonwealth  v.  Kidder,  107  Mass.  1*8... 180,  188 

Commonwealth  v.  Lynn,  123  Mass.  218 78 

Commonwealth  v.  McCue,  16  Gray,  226,  227...    78 
Commonwealth  v.  McDonough,  13  Allen,  581, 

584 183 

Commonwealth  v.  McDuffy,  126  Mass.  467 79 

Commonwealth  v.  McKie,  61  Amer.  Dec.  410..     73 
tCommonwealth  v.  Miller,  139  Pa.  St.  77, 21  AtL 

Rep.  138 170 

Commonwealth  v.  Railroad  Co.,  14  Gray,  93,97  189 

Commonwealth  v.  Randall,  4  Gray,  36 81 

Commonwealth  v.  Suelling,  15  Pick.  337 99 

Commonwealth  v.  Stebbins,  8  Gray.  492 78,  79 

tCommonwealth  v.  Tobin,  108  Mass.  -126 161 

Commonwealth  v.  White,  110  Mass.  407 71 

Commonwealth  v.  Woodward,   102    Mass.  155, 

161 77 


189 


181 
69 


CASES  CITED. 


Page 
Connecticut  Mut.  Life  Ins.  Co.  v.  Railroad  Co., 

2.^>  Conn.  255 247,  248 

Conway  v.  Bush,  4  Barb.  565 204 

Cook  V.  Stearns,  11  Mass.  533 159 

Cooke  V.  Forbes,  L.  R.  5  Eq.  166 166,  167 

tCool  V.  Crommet,  13  Me.  250 162 

■j-Cooper  V.  Lovering,  106  Mass.  77 262 

Cooper  V.  Randall,  53  111.  24 166 

tCooper  V.  Schlesinger,  111  U.  S.  148,  4  Sup.  Ct. 

Rep.  360 258 

Corbett  V.  Brown,  8  Biug.  33  252 

Corby  V.  Hill,  4  C.  B.  (N.  S.)  556 220 

Corcoran  V.  Holbrook,  59  N.  Y.  517 243 

Corning  v.  Factory,  40  N.  Y.  191,  230 166, 175 

Cornwall  v.  Railroad,  8  Fost.  (N.  H.)  167 163 

tCottrill  V.  Railroad  Co.,  47  Wis.  634,  3  N.  vV". 

Rep.  376 237 

Couch  V.  Steel,  3  El.  &  Bl.  402 16 

CountJoannes  v.  Bennett,  5  Allen,  169 142 

Coventry  v.  Barton,  17  Johns.  142 69 

tCowley  V.  Smyth,  46  N.  J.  Law,  380 257,  262 

jCowper  V.  Andrews,  Hob.  42 156 

Coxhead  v.   Richards,  2  Man.,  G.  &  S.  *569, 

*6()1 140 

Craft  V.  Boite,  1  Saund.  243,  note 127 

Crain  v.  Petrie,  6  Hill,  523,  524 122,  149,  150 

Crawshay  v.  Thompson,  4  Man.  &  G.  357 2oi 

tCristie  V.  Cowell,  Peake,  4 115 

Crittal  V.  Horner,  Hob.  219 116 

tCrook  V.  Pitcher.  61  Md.  510 185 

Cropp  V.  Tilney,  3  Salk.  226 125 

Cross  V.  Guthery,  2  Root,  90 247 

Cross  V.  Kent,  32  Md.  581 51 

Crosse  V.  Gardner,  Carth.  90 251 

Crowlev  v.  Railroad  Co.,  30  Barb.  99 266 

tCruikshank  v.  Gordon,  118  N.  Y.  178,  23  N.  E. 

Rep.  457 : 121 

Crump  V.  Lambert,  L.  R.  3  Eq.  408,  409 166,  177 

Cubitt  V.  Porter,  8  Barn.  &  C.  269 157 

tCuff  V.  Railroad  Co. ,  35  N.  J.  Law.  17 242 

Cunningham  v.  Bucklin,  8  Cow.  178 212 

Currier  v.  Swan,  63  Me.  323 68 

Curtis  V.  Carson,  2  N.  H.  539 76 

Curtis  V.  Curtis,  10  Bing.  477 112 

tCurtis  V.  Hubbard,  4  Hill,  437 215 

Curtiss  V.  Hoyt,  19  Conn.  154 155 


Dain  v.  Wycofif,  7  N.  Y.  191 

tDalay  v.  Savage,  145  Mass.  38,  13  N.  E. 
841 


Rep. 


Dale  V.  Harris,  109  Mass.  196 

tDaley  v.  Railroad  Co.,  26  Conn.  591 

tDalton  v.  Angus,  L.  R.  6  App.  Cas.  740. . , 

tDanenhoffer  v.  State,  6:»  Ind.  295 , 

Daniels  v.  Potter.  4  Car.  &  P.  262 

Darling  v.  Williams,  35  Ohio  St.  63 , 

Daumiel  v.  Gorham,  6  Cai.  44 , 

Davies  v.  Mann,  10  Mees.  &  W.  546 

Davies  v.  Snead,  L.  R.  5  Q.  B.  611 

tDavies  v.  Solomon,  L.  R.  7  Q.  B.  112 , 

Davis  v.  Clanc v,  3  McCord,  423 , 

Davis  V.  Gardiner,  4  Coke,  16/>,  17 ...29 

tDavis  V.  Getchell,  50  Me.  603 

Davis  V.  Hardy,  6  Barn,  &  C.  225 

Davis  V.  Lambertson,  56  Barb.  480 

tDavis  v.  Lottich,  46  N.  Y.  395 

Davis  v.  Nash,  33  Me.  411 

tDavis  V.  Nuzum,  72  Wis.  439,  40  N.  W.  Rep. 

497 

tDavis  V.  Railroad  Co.,  143  Mass.  301,  9  N.  E. 

Rep.  815 

Davis  V.  Saunders,  2  Chit.  639 

Davis  V.  Sawyer,  133  Mass.  28U..  ..170,  177,  178, 

Davis  V.  Sims,  Lalor,  Supp.  234 

Davis  V.  Whitridge,  2  Strob.  233 

tDaw  V.  Goldiug,  Cro.  Car.  196 

Dawkins  v.  Rokeby,  L.  R.  7  H.  L.  744,  L.  R.  8 

Q.  B.  355 14, 

Day  V.  Bach,  87N.  Y.56 

Dean  v.  Peel,  5  East,  45 

Dean  v.  Railroad,  2  Fost.  (N.  H.)  317 

tDearbourn  v.  Bank,  58  Me.  273 

Delahoussaye  v.  Judice,  13  La.  Ann.  5S7 

De  Lavallette  v.  Wendt,  75  N.  Y.  579 

Delegal  v.  Highley,  3  Bing.  N.  C.  950 

tDemarest  v.  Hardham,  34  N.  J.  Eq.  469 

tDeuuick  v.  Railroad  Co.,  103  U.  S.  11 


219 

183 

138 

233 

15 

bl 

34 

75 

215 

2  a 

146 

124 

154 

,  45 

175 

95 

166 

203 

155 


267 
53 

186 

21)5 
78 

15o 

147 
91 

218 
163 
206 
171 

267 
100 
171) 
267 


Pnse 
Dent  V.  Auction  Mart  Co.,  35  Law  J.  Ch.  555. . .  16e 

tDePew  v.  Robinson,  95  Ind.  109 131 

Dering  v.  Earl  of  Winchelsea,  1  Cox,  318 69 

tDerry  v.  Peek,  L.  R.  14  App.  Cas.  376 11 

Devereux  v.  Barclay,  2  Barn.  &  Aid.  702 204 

Devine  v.  Mills,  9  N.  Y.  637,  mem 88 

tDevlin  v.  Smith,  89  N.  Y.  470 67 

Devon  V.  Brownell,  5  Pick.  448 10 

Dexter  v.  Spear,  4  Mason,  115 13.5 

Deyo  v.  Stewart,  4  Denio,  101 163 

Dicas  V.  Lord  Brougham,  6  Car.  &  P.  249 212 

Dickinson  v.  Barber,  9  Mass.  225 51 

Dickinson  v.  Worcester,  7  Allen,  19 171 

Dietus  V.  Fuss,  8  Md.  148 205 

tDingley  v.  Buffum,  57  Me.  379 157 

Dixon  V.  Bell,  5  Maule  &  S.  198 33.  36,  67 

Doggettv.  Railroad  Co.,  34  Iowa,  284 235 

Dole  V.  Erskine,  35  N.  H.  503 75 

Dolph  V.  Ferris,  7  Watts  &  S.  367 1.53 

tDonaghue  v.  GafiEy,  53  Conn.  43,  2  Atl.  Rep.  397  136 

Donald  V.  Humphrey.  14  F.  (S.  C.)  1206 165 

Doswell  V.  Impey,  1  Barn.  &  C.  163 213 

Dovaston  v.  Payne,  2  H.  Bl.  527 163 

tDowling  V.  Lawrence,  58  Wis.  282,  16  N.  W. 

Rep.  552 260 

tDowman's  Case,  9  Coke,  lln,  1  And.  65 156 

tDowniug  v.  Dearborn,  77  Me.  457,  1  Atl.  Rep. 

407 260 

Dovley  v.  Roberts,  3  Bing.  N.  C.  835 119 

tDrake  v.  State.  (N.  J.  Sup.)  20  Atl.  Rep.  747..  13  5 

Dre we  v.  Coulton.  1  East,  563,  note 20 

tDubois  V.  Beaver,  25  N.  Y.  123,  128 157 

Dubois  V.  Budlong,  15  Abb.  Pr.  445 179 

tDudley  V.  Mayhew,  3  N.  Y.  9 IS 

tDufour  v.  Anderson,  95  Ind.  302 197 

Dufresne  V.  Hutchinson,  3  Taunt.  117 1'.I8 

Duke  of  Graf  ton  V.  Hilliard,  (not  reported). ..   165 

Duke  of  Newcastle  v.  Clark,  8  Taunt.  603 212 

tDun  V.  Railroad  Co.,  78  Va.  645 226 

Dunlap  V.  Glidden,  31  Me.  435 13,  15,  248 

Dunlop  V.  Munroe,  7  Cranch,  242 314 

Dunn  V.  Winters.  2  Humph.  512 135 

Dunwich  v.  Sterry,  1  Barn.  &  Adol.  831 l-V.) 

Durrell  v.  Bederley,  Holt,  N.  P.  283 43 

tDvckman  v.  Valiente,  42  N.  Y.  549 2.»3 

Dygert  v.  Bradley,  8  Wend.  469,  472,  473. .  .229,  230 
Dygert  v.  Schenck.  23  Wend.  446 ISO 

Eames  v.  Worsted  Co.,  11  Mete.  (Mass.)  570. ..  188 

Earl  v.  Van  Alstine,  8  Barb.  630 192 

Earl  of  Lonsdale  v.  Nelson,  2  Barn.  &  C.  303,  3 

Dow.  &  R.  5.56 189 

tEastin  v.  Bank,  66  Cal.  123,  4  Pac.  Rep.  1106..  108 

Easton  v.  Calendar,  11  Wend.  90 212 

tEust  River  Gas-Light  Co.  v.  Donnelly,  93  N. 

Y.  557 212 

tEdgerly  v.  Bush,  81  N.  Y.  199 267 

Edgington  v.  Fitzmaurice,  29  Ch.  Div.  459 254 

Edmonson  v.  Stevenson,  Bull.  N.  P.  8 129 

tEdmunds  v.  Hill,  133  Mass.  445 306 

tEdmundson  v.  Railroad  Co.,  Ill  Pa.  St.  316,  2 

Atl.  Rep.  404 242 

Edwards  v.  Wooton,  13  Coke,  35 131 

tEhrgott  V.  Mayor,  etc.,  96  N.  Y.  264 4S 

Elliott  V.  Brown,  2  Wend.  497 76 

tEllis  V.  Buzzell,  60  Me.  209 i;-6 

tEllis  V.  Gas  Co.,  2  El.  &  Bl.  767 ^43 

Elsee  V.  Smith,  2  Chit.  304 '.W 

tEly  V.  Ehle,  3  N.  Y.  507 19j 

tEmbrey  v.  Owen,  6  Exch.  353 23,  175 

Emerson  v.  Peteler,  35  Minn.  481,29  N.  W.  Rep. 

311 227 

Emery  v.  Hapgood,  7  Gray,  55 14,  90 

tEngstrom  v.  Sherburne,  137  Mass.  153 110 

tErie  City  Iron-Works  v.  Barbei-,  KKJ  Pa.  St. 

125 258 

tErie  City  Pass.  R.  Co.  V.  Schuster,  113  Pa.  St. 

412,  6  Atl.  Rep.  369 233 

tEsty  V.  Wilmot,  15  Gray,  168 157 

Evans  v.  Bicknell.  6  Ves.  186 31 

Evans  v.  Collins,  5  Q.  B.  804,  830 253 

Evans  v.  Edmonds,  13  C.  B.  777 353,  254 

Evans  v.  Foster,  1  N.  H.  377 213 

Evans  v.  Harlow,  5  Q.  B.  634 13,  13 

tEvans  v.  Walton,  L.  R.  3  C.  P.  615 47 

tEverett  v.  Henderson,  146  Mass.  89,  14  N.  E. 

Rep.  933 13 


CASES  CITED. 


xui 


Page 
Eyre  v.  Dunsf ord,  1  East,  318,  329 9,  31 

Fall  River  Iron-Works  Co.  v.  Railroad  Co.,  5 

Allen.  224 184 

tFargis  v.  Walton,  107  N.  Y.  398,  14  N.  E.  Rep. 

30.i 159 

Farmer  v.  Darling,  4  Burrows,  1971 101 

Farrand  v.  Marshall,  21  Barb.  421 179 

Farwell  v.  Railroad  Corp.,  4  Mete.  (Mass.)  49 

245  247 

+Fay  V.  O'Neill,  36  N.Y.I  1 '  103 

Fay  V.  Whitman,  100  Mass.  76 177 

Fent  V.  Railroad  Co.,  59  111.  349 43 

tFields  V.  Stokley,  99  Pa.  St.  306 191 

tFilbert  v.  Hoff ,  42  Pa.  St.  97 157 

tFilburn  v.  People's  Palace,  etc.,  Co.,  25  Q.  B. 

Div.  258 194 

Fillo  V.  Jones,  2  Abb.  Dec.  121 179 

tFindlay  v.  McAllister,  113  U.  S.  104, 5  Sup.  Ct. 

Rep.  401 110 

tFirst  Nat.  Bank  v.  Railroad  Co.,  58  N.  H.  203..  201 

Fischer  v.  Raab,  81  N.  Y.  235 91 

tFish  V.  Dodge,  4  Denio,  311 178 

Fish  V.  Ferris,  5  Duer,  49 201 

Fisher  v.  Bristow,  1  Doug.  215 107 

tFisher  v.  McGirr,  1  Grav,  45 216 

Fisher  v.  Mellon,  103  Mass.  .")03 258 

Fitzgerald  V.  Cavin,  110  Mass.  153 75 

tFitzgerald  v.  Railroad  Co.,  2J  Minn.  336,  13  N. 

W.  Rep.   168.    233 

tFitzgerald  v.  Redfield,  51  Barb.  484 121 

Flack  V.  Harrington,  12  Amer.  Dec.  170 90 

tFleetwood  v.  Commonwealth,  80  Ky.  1 98 

Fleming  v.  Railway  Co.,  4  Q.  B.  Div.  81 56 

Fletcher  v.  Rvlands,  L.  R.  1  Exch.  26.5,  L.  R. 

3  H.  L.  3;30.  .■ 162,  221-223 

Flight  V.  Thomas,  10  Adol.  &  E.  590 2 

Floyd  V.  State,  54  Amer.  Dec.  250 90 

Floyd  and  Barker,  Case  of,  12  Coke,  23,  25., 207,  212 

tFolger  V.  Washburn,  137  Mass.  60 102 

Foot  V.  Brown.  8  Johns.  54 120 

tForbes  v.  Hagman,  75  Va.  168 102 

tForbes  v.  Railroad  Co.,  133  Mass.  154 201 

Ford  V.  Monroe,  20  Wend.  210 247 

tFord  V.  Primrose.  5  Dowl.  &  R.  288 115 

Former  v.  Geldmecher,  13  Reporter,  790 40 

Fortman  v.  Rottier,  8  Ohio  St.  548 106 

Foshay  v.  Ferguson,  2  Den  io,  617 95,  98 

Fobs  v.  Hildreth,  10  Allen,  76 1.S6 

Foster  v.  Charles,  7  Bing.  105 251,  252,  254 

tFouldes  v.  Willoughby,  8  Mees.  &  W.  540 196 

Foulkes  v.  Railway  Co.,  4  C.  P.  Div.  267,  5  C. 

P.  Div.  157 56 

Fowle  V.  Robbins,  12  Mass.  498 149 

Fowler  v.  Hollins,  L.  R.  7  H.  L.  757,  L.  R.  7  Q. 

B.  616 199 

Fowles  V.  Bowen,  30  N.  Y.  20 144 

tFrancis  v.  Schoellkopf,  53  N.  Y.  152 185 

Fray  v.  Blackburn,  3  Best  &  S.  .576 208 

Frazier  v.  Brown,  12  Ohio  St.  2y4 27 

Freeman  v.  Arkell,  2  Barn.  &  C.  494,  3  Dowl. 

&  R.  669 103 

tFrench  V.  Vining,  102  Mass.  132 260 

tFriend  v.  Hamill.  34  Md.  298 212 

Frost  V.  Railroad  Co.,  (N.  H.)  9  Atl.  Rep.  790  227 
Fuller  V.  Chamberlain.  11  Mete.  (Mass.)  503. ..     68 

Fuller  V.  Fenner,  16  Barb.  333 124 

Fuller  V.  Jewett,  80  N.  Y.  46 220 

Fulton  Fire  Ins.  Co.  v.  Baldwin,  37  N.  Y.  648..  213 

Gage  V.  Whittier,  17  N.  H.  312 205 

Galena  &  C.  U.  R.  Co.  v.  Yarwood,  15  111.  468. .  225 
tGalligan  v.  Manufacturing  Co.,  143  Mass.  527, 

10  N.  E.  Rep.  171 8 

tGalvin  v   Bacon,  11  Me.  28 206 

Gannon  v.  Hargadon,  10  Allen,  106 171 

Gardner  v.  Village  of  Newburgh,  2  Johns.  Ch. 

162 21,22 

Garing  v.  Eraser,  76  Me.  37 104,  110 

Garnett  v.  Ferrand,  6  Barn.  &  C.  611 212 

Gassett  v.  Gilbert,  6  Gray,  94 138 

Gates  V.  Louiisbuiv,  20  j'ohns.  427 76 

tGauvreau  v.    Publishing  Co.,  62  Wis.  403,  22 

N.  W.  Rep.  ;2t; 121 

Gavett  V.  Raili oad  Co.,  16  Gray,  501 225 

tGeary  v.  Bennett,  oJi  Wis.  444,  10  N.  W.  Rep. 

61^2 115 


Page 
Gerber  V.  Grabel,  16  111.  217 2 

Getting  v.  Foss,  3  Car.  &  P.  160 144 

Gibbs  v.  Chase,  10  Mass.  128 196 

Gibbs  V.  Dewey,  5  Cow.  503 Ill,  112 

Gibs  V.  Price,  Style,  231 117 

Gilbert  v.  Dickerson,  7  Wend.  449 203 

Gilbert  V.  People,  1  Denio,  41  146 

Gillespie  v.  McGowan,  100  Pa.  St.  144 8,  227 

Gillham  V.  Railroad  Co.,  49  111.  484 171 

Gillisv.  Railroad  Co.,  59  Pa.  St.  129 7 

tGilman  v.  Emery,  54  Me.  460 196 

Gilman  v.  Philadelphia,  3  Wall.  713,  732 189 

tGilmore  v.  Driscoll,  122  Mass.  199 28 

tGilmore  v.  Newton,  9  Allen,  171 206 

Gizler  V.  Witzel,  82  111.  322 75 

Glidden  v.  Towle,  11  Post.  (N.  H.)  168 163 

tGodeau  v.  Blood,  .52  Vt.  251 194 

tGodsell  V.  Fleming,  59  Wis.  52,  17  N.  W.  Rep. 

679 191 

Godson  V.  Home,  1  Brod.  &  B.  7 140 

Gold  V.  Bissell,  1  Wend.  210,  19  Amer.  Dec.  480    90 

Goldstein  v.  Foss,  6  Barn.  &  C.  15-> 144 

Goodale  v.  Tuttle,  29  N.  Y.  459,  467 27,  171 

Goodrich  v.  Woolcott,  3  Cow.  231,  5  Cow.  714..  113 

Goodtitle  v.  Tombs,  3  Wils.  118 157 

tGoodwin  v.  Wertheimer,  99  N.  Y.  149,  1  N.  E. 

Rep.  404 206 

Goodwyn  v.  Cheveley,  28  Law  J.  Exch.  298....  163 

Gordon  v.  Butler,  105  U.  S.  553 363 

Gorham  v.  Gross,  125  Mass.  232,  238 51,  223 

Gormley  v.  Sanford,  52  111.  158 171 

tGorris  V.  Scott.  L.  R.  9  Exch.  135 18 

Gorton  v.  De  Angelis,  6  Wend  .418 98 

Gorton  v.  Frizzell,  20  111.  291 90 

Goslin  V.  Wilcock,  2  Wils.  302,  305,  307. . . .  102,  105 

Gould  V.  Duck  Co.,  13  Gray,  443 174 

Govett  V.  Radnidge,  3  East,  62 .56 

Grafton,  Duke  of  v.  Hilliard,  (not  reported)...  165 

Grant  v.  Moser,  5  Man.  &  G.  123 96 

tGrant  V.  Power  Co.,  14  R.  I.  380 18 

tGraves  v.  Dawson,  133  Mass.  419 I(i3 

Greason  v.  Keteltas,  17  N.  Y.  496 192 

Green  v.  Dunn,  3  Camp.  215 205 

Green  v.  Elgie,  5  Q.  B.  99 90 

Green  v.  Goddard,  3  Salk.  641 78,  153 

Green  v.  Railroad  Co.,  *41  N.  Y.  294,  2  Abb. 

Dec.  277 247 

Green  v.  Sperry,  16  Vt.  390 201 

Greene  v.  Jones,  1  Saund.  296,  note  1 153 

Greenland  V.  Chaplin,  5  Exch.  243,  248 35 

Greenway  v.  Fisher,  1  Car.  &  P.  190 205 

Gregory  v.  Hill,  8  Term  R.  299 76,  77,  1.52 

+  Gregory  v.  Piper,  9  Barn.  &  C.  591 153 

tGrider  v.  Tally,  77  Ala.  422 214 

+  Griffith  V.  McCuUum,  46  Barb.  561 191 

Grin  ham  v.  Willey,  4  Hurl.  &  N.  496 89 

Grinnell  V.  Wells,  7  Man.  &  G.  1033 218 

Grove  V.  Brandenburg,  7  Blackf.  234 248 

t  Grove  v.  Van  Duyn,  44  N.  J.  Law,  654 212 

Grumon  v.  Raymond,  1  Conn.  40 90 

Guille  v.  Swan,  19  Johns.  381,  382 

37,  38,  40,  195,  196 
tGunsolus  V.  Lormer,  54  Wis.  630,  12  N.  W. 

Rep.  62 1 .55 

Gwinne  v.  Pool,  Lutw.  290 212 

tHadley  v.  Clinton,  etc.,  Co.,  13  Ohio  St.  502..  260 

tHager  V.  Danforth,  20  Barb.  16 161 

tHaggertyv.  Wilber,  16  Johns.  287 215 

Hair  v.  Little,  2*  Ala.  238 68 

Haldeman  v.  Martin,  10  Pa.  St.  369 15 

Hall  v.  Fisher,  20  Barb.  441 98 

Hall  v.  Hollander,  4  Barn.  &  C.  660 229 

+  Hall  v.  Smith,  2  Bing.  156 t3 

Hall  V.  Smith,  7  Leg.  Int.  7 loi 

Hall  V.  Suowhill,  14  N.  J.  Law.  8 154 

tHall  V.  Suydam,  6  Barb.  83 103 

Halsev  v.  Woodruff,  9  Pick.  5.55 68 

Hamar  v.  Alexander,  2  Bos.  &  P.  241 31 

Hamilton  v.  Eno,  81  N.  Y.  1 16 139,  145 

Hammack  V.  White,  11  C.  B.  (N.  S.)  5>8 223 

Hardcastle  v.  Railway  Co.,  4  Hurl.  &  N.  67 7,  8 

Harding  V.  Larned,  4'Allen,  420 51 

Harding  v.  Weld,  128  Mass.  587,  591 51 

Hargrave  v.  Le  Breton,  4  Burrows,  2425 130 

tHarlan  v.  Railroad  Co.,  65  Mo.  22 226 

Harman  v.  Brotheisou,  1  Denio,  537 92 


XIV 


CASES  CITED. 


Page 

tHarman  v.  Delany,  2  Strange,  893 12 

Harman  V.  Tappenden,  1  East,  555 20 

Harmon  v.  Harmon,  61  Me.  222 151 

Harris  V.  Butler,  2  Mees.  &  W.  539 218 

Harris  V.  Thompson,  13  C.  B.  333 144 

tHarrisburg,  The,  119  U.  S.  199,  7  Sup.  Ct.  Rep. 
140 248 


Harrison  v.  Bush,  5  El.  &  Bl.  344 137,  139, 

Harrison  v.  Railway  Co.,  3  Hurl.  &  C.  231,  33 

Law  J.  Exch.  266 

Hart  V.  Aldridge,  Cowp.  54 

Hartfield  v.  Roper,  21  Wend.  615 231,  232, 

tHartford  v.  Brady,  114  Mass.  466 

Hartshorn  v.  South  Reading,  3  Allen,  501 

Hartzall  v.  Sill,  12  Pa.  St.  248 174, 

Harvard  College  v.  Stearns,  15  Gray,  1 

tHarvey  v.  Dunlop,  Lalor,  Supp.  193 

Harwood  v.  Lowell,  4  Cush.  310 

Harwood  v.  Siphers,  70  Me.  464 

Haskell  v.  New  Bedford,  108  Mass.  208,  215 

tHaskins  V.  Royster,  16  Amer.  Rep.  780 

tHastings  v.  Livermore,  7  Gra v,  1 94 

Hastings  v.  Lusk,  22  Wend.  410 

Hastings  v.  Palmer,  20  Wend.  225 

Hatch  V.  Railroad,  28  Vt.  142,147 

tHathorn  v.  Spring  Co.,  44  Hun,  608 

Hay  V.  Cohoes  Co.,  3  Barb.  42,  2  N.  Y.  159 

Haycraft  v.  Creasj',  2  East,  92,  104 31,  51, 

tHayden  v.  Manufacturing  Co.,  29 Conn.  548.. 

t  Haves  V.  Ball,  72  N.  Y.  418 

+  Hayes  V.  Waldron,  44  N.  H.  580 

Hays  V.  Hays,  19  La.  351 

tHavs  V.  People,  1  Hill,  351 

tHaythorn  v.  Rushforth,  19  N.  J.  Law,  160.. .. 

tHazard  v.  Harding,  63  How.  Pr.  326 

Heath  v.  Randall.  4  Cush.  195 

t  Heaven  v.  Pender,  11  Q.  B.  Div.  .503 67, 

Heenan  v.  De war,  IS  Grant,  Ch.  438 

Heeney  v.  Sprague,  11  R.  I.  4.56 

t  Heermance  v.  James,  47  Barb.  120 

Heermance  v.  Vernoy,  6  Johns.  5 

Henderson  v.  Broomhead, 4  Hurl.  &  N.  569.... 

Henn's  Case.  W.  Jones,  396 

Herbert  and  Stroud's  Case,  Cro.  Car.  210 

Hei'mann  V.  Railroad  Co.,  11  La.  Ann.  5 

Herring  V.  Finch,  2  Lev.  250 

Hetrich  v.  Deachler,  6  Pa.  St.  32 174, 

t  Hewit  V.  Mason,  24  Ho w.  Pr.  366 

i-  Hey  wood  v.  Tillson,  75  Me.  225 

Hibbard  v.  Railroad  Co.,  15  N.  Y.  4.55 

Hicke's  Case,  Poph.  139.  Hob.  215 

Hickev  v.  Railroad  Co.,  14  Allen,  429 

t  Hicks  V.  Faulknei-,  8  Q.  B.  Div.  167,  46  Law 

T.  (N.  S.)  127 

Higgins  V.  Dewey,  107  Mass.  494 

Higgins  v.  Turnpike  Co.,  46  N.  Y.  23 

Higginson  v.  York,  5  Mass.  341 

tmidebrand  v.  McCrum,  101  Ind.  61 

Hill  v.  Balls,  2  Hurl.  &  N.  299 

Hill  V.  Goodchild,  5  Burrows,  2790 

Hill  V.  New  River  Co.,  9  Best  &  S.  303 

Hill  V.  Railroad  Co.,  55  Me.  438 

Hill  v.  Sayles,  12  Cush.  4.54 

Hillhouse  v.  Dunning,  6  Conn.  391 

Hilliard  v.  Goold,  34  N.  H.  230 

tHilliard  v.  Richardson,  3  Gray,  349 

Hinckley  v.  Emerson,  4  Cow.  351 

flingham  v.  Sprague,  15  Pick.  102 

Hoar  v.  Wood,  3  Mete.  (Mass.)  193 

Hobbs  V.  Branscomb,  3  Camp.  420 

+Hobbs  V.  Escott,  2  Sid.  40 

Hobson  V.  Todd,  4  Term  R.  71,  73 

Hodgeden  V.  Hubbard,  18  Vt.  504 

tHogg  V.  Ward,  3  Hurl.  &N.417 

tHolbrook  v.  Connor,  60  Me .  578 

tHolden  v.  Railroad  Co.,  129  Mass.  268 

Hole  V.  Barlow,  4  C.  B.  (N.  S.)  336 

HoUaday  v.  Marsh,  3  Wend.  147 

tHollins  V.  Fowler,  L.  R.  7  H.  L.  757 50, 

tHollis  V.  Meux,  69  Cal.  625,  11  Pac.  Rep.  248.. 
Holman  v.  Townsend,  13  Mete.  (Mass.)  297,  299 
tHolmes  v.  Corthell,  80  Me.  31, 12  Atl.  Rep.  730 

Holmes  V.  Railway  Co.,  L.  R.  6  Exch.  123 

Holmes  v.  Seely,  19  Wend.  507 154, 

Holmes  v.  Wakefield,  12  Allen,  580 

tHolsman  v.  Bleaching  Co.,  14  N.  J.  Eq.  335... 
Holyday  v.  Morgan,  28  Law  J.  Q.  B.  9 


144 

35 
46 

233 
162 
184 
175 
184 

53 
161 

90 
188 

47 

23 
146 
122 
187 
136 
179 
251 
244 
115 
176 
171 

71 
196 
108 
158 
220 
167 

16 
217 
152 

14 
160 

83 
248 

20 
175 
116 

11 

86 
131 
225 

101 

43 

238 

195 

!36 

2.^.9 

68 

34 

43 

176 

125 

79 

242 

153 

155 

14 

94 

156 

21 

78 

95 

262 

247 

165 

163 

201 

147 

184 

1S5 

220 

160 

239 

176 

264 


Page 

Holwood  V.  Hopkins,  Cro.  Eliz.  787 45 

Homer  v.  Thwing,  3  Pick.  492 201 

Hood  v.  Palm,  8  Pa.  St.  237 15 

Horbach's  Adm'rs  v.  Elder,  18  Pa.  St.  33 69 

Hornketh  v.  Barr,  8  Serg.  &  R.  36 219 

tHostler's  Case,  Yelv.  67 156 

Hotchkiss  V.  Porter,  30  Conn.  414 138 

tHough  V.  Railway  Co.,  100  U .  S.  213 244 

Hounsell  v.  Smyth.  7  C.  B.  (N.  S.)  731 7,  220 

Hover  v.  Barkhoof,  44  N.  Y.  113 16,  213 

tHoward  V.  Clarke,  20  Q.  B.  Div.  558.... 95 

Howard  v.  Manderfield,  31  Minn.  337,  17  N.  W. 

Rep.  946 215 

+Howe  V.  Newmarch,  12  Allen,  49 239 

Howell  V.  Jackson,  6  Car.  &  P.  723 97 

tHowitt  V.  Estelle,  92  111.  218 206 

Hoy  V.  Sterrett,  2  Watts,  327 174,  175 

Hoye  V.  Bush,  1  Man.  &  G.  775 90 

Hoyt  V.  Hudson,  27  Wis.  656 171 

Hoytv.  Macon,  2  Colo.  113 105 

t  Hubbard  v.  Mace,  17  Johns.  127 161 

Hubgh  V.  Railroad  Co.,  6  La.  Ann.  495 248 

Huckenstine's  Appeal,  70  Pa.  St.  103 166 

I"  Huddleston  v.  West  Bellevue,  111  Pa.  St.  110, 

2Atl.  Rep.  200 68 

Huggett  V.  Montgomery,  2  Bos.  &  P.  N.  R.  446    52 

+  Hughes  V.  McDonough,  43  N.  J.  Law,  4.59 48 

Hughes  V.  Macfie,  2  Hurl.  &  C.  744,  33  Law  J. 

Exch.  177 34 

t  Hull  V.  Bartlett,  49  Conn.  64 83 

Hume  V.  Oldacre,  1  Starkie,  351 68 

Humphreys  v.  County  of  Armstrong,  56  Pa.  St. 

204 68 

+  Humphreys  v.  Mears,  1  Man.  &  R.  187 63 

Humphries  v.  Parker,  52  Me.  502 99 

Hunt  V.  Bennett,  19  N.  Y.  173 126 

Hunt  V.  Dowman,  Cro.  Jac.  478,  3  RoUe,  21 20 

Huntv.  Hunt,  72  N.  Y.  218 266 

Hunter  v.  Slate,  40  N.  J.  Law,  495 200 

Hurd  V.  Railroad  Co.,  25  Vt.  122 163 

Hutchins  v.  Brackett,  2  Fost.  (N.  H.)  252 214 

Hutchins  v.  Hutchins,  7  Hill,  104 11,  110 

Hutchins  v.  Smith,  63  Barb.  251 166 

Hutchinson  v.  Railway  Co.,  5  Exch.  343 245 

Hutson  V.  Mayor,  etc.",  9  N.  Y.  169 213 

Hyatt  v.  Adams,  16  Mich.  ISO 247 

Hyatt  V.  Wood,  4  Johns.  1.50 76 

+  Hyde  v.  Greuch,  62  Md.  577 107 

Hydev.  Stone,  9  Cow.  2-30 203 

Hydraulic  Works  Co.  v.  Orr,  83  Pa.  St.  332.. 5,  6,  7,  8 

Illidge  V.  Goodwin,  5  Car.  &  P.  190,  192. .  .33,  34,  67 

Ilott  V.  Wilkes,  3  Barn.  &  Aid.  304.  308 33,  193 

Ince  V.  Ferry  Co.,  106  Mass.  149 224 

tindermaur  v.  Dames,  L.  R.  1  C.  P.  274,  L.  R.  3 

C.  P.  311 220 

Indianapolis,  P.  &  C.  R.  Co,  v.  Keely,  23  Ind. 

133 247 

tingwersen.  v.  Rankin,  47  N.  J.  Law,  18 183 

tinland  &  Seaboard  Coasting  Co.  v.  Tolson,  139 

U.  S.  551,  U  Sup.  Ct.  Rep.  653 226 

Ireland  v.  Higgins,  Cro.  Eliz.  125 194 

tisaack  v.  Clark,  2Bulst.  312 156 

Isack  v.  Clarke,  1  Rolle,  60,  130 156 

tisbell  V.  Railroad  Co. ,  27  Conn.  393 226 

t Jackson  v.  Adams,  2  Ring.  N.  C.  402,  2  Scott, 

599 115 

Jackson  v.  Pesked,  1  Mauls  &  S.  235 20 

Jackson  v.  Railroad  Co.,  47  N.  Y.  274 239 

tJacobsen  v.  Siddal,  12  Or.  280,  7  Pac.  Rep.  108  217 

J' Anson  v.  Stuart,  1  Term.  R.  748 1:^5 

tJardine  v.  Cornell,  50  N.  J.  Law,  485,  14  Atl. 

Rep.  590 80 

Jay  V.  Whitfield,  cited  in  3  Barn.  &  Aid.  308. . .     34 

Jeffrey  v.  Bigelow,  13  Wend.  518 259 

t Jeffries  v.  Railroad  Co.,  5  El.  &  Bl.  802 202 

Jendwine  v.  Slade,  2  Esp.  572 262 

Jenkins  v.  Turner,  1  Ld.  Raym.  109 153 

Jennings  v.  Rundall,  8  Term.  R.  337 230 

tJenoure  v.  Delmege,  [1891,]  App.  Cas.  73 145 

Jerome  v.  Ross,  7  John.  Ch.  315 21 

Jesser  v.  Gifford,  4  Burrows,  2141 1 54 

Jessup  V.  Carnegie,  80  N.  Y.'441 266 

Jetter  v.  Railroad  Co. ,  2  Abb.  Dec.  458 16 

tJewell  v.  Mahood,  44N.  H.  474 157 

Jewell  V.  Railway  Co.,  55  N.  H.  64 54 


CASES  CITED. 


XV 


Patie 

Jewett  V.  Locke,  6  Gray,  233 103 

Joannes  v.  Bennett,  o  Allen,  169 142 

Joannes  v.  Hurt,  ti  Allen,  SM 127 

John  Matrever's  Case,  3U  Ass.  pi.  3S 156 

Johnson  v.  Patterson,  U  Conn.  1 ^8 

Johnson  v.  Ferrv.  56  Vt.  TU.i 78 

Johnson  v.  Robertson,  S  Port.  (Ala.)  4S6 120 

t  Johnson  v.  Skillman,  29  Minn.  95,  12  N.  W, 

Rep.  149 1S9 

Johnston  v.  Altham,  Gilb.  Ch.  82 156 

t  Johnston  v.  Disbrow,  47  Mich.  59,  10  N.  W 

Rep.  79 217 

Jones  V.  Baker,  7  Cow.  445 110 

t  Jones  V.  Brown,  54  Iowa.  74,  6  N.  W.  Rep.  140  212 

Jones  V.  Givin,  Gilb.  185.  220 103 

Jones  V.  Perry,  2  Esp.  482 192 

t  Jones  V.  Powell,  Palmer,  536 25 

Jordan  v.  Lyster,  Cro.  Eliz.  273 118 

Jordin  v.  Crump,  8  Mees.  &  W.  782 33 

t  Joyce  V.  Martin,  15  R.  I.  .55^,  10  Atl.  Rep.  620  183 
juchter  v.  Boehm,  67  Ga.  534 105 

+  Kaucher  v.  Blinn,  29  Ohio  St.  62 116 

Kauflfman  v.  Griesemer.  26  Pa.  St.  4U7 171 

Keenholts  V.  Becker,  3  Denio,  346 122,  124 

Keffe  V.  Railroad  Co.,  21  Minn.  207 226,  227 

Keller  v.  Railroad  Co.,  2  Abb.  Dec.  480 42 

Kellogg  V.  Railroad  Co.,  26  Wis.  224 43 

+  Kellv  V.  Howell,  41  Ohio  St.  438 67 

Kelly 'v.  Partington,  5  Barn.  &  Adol.  645 12;B 

Kelly  V.  Tilton,  2  Abb.  Dec.  495 192 

Kellv  V.  West,  80  N.  Y.  139 267 

Kendall  v.  Stone,  5  N.  Y.  14 122 

Kerle  v.  Osgood,  1  Vent.  50 117 

Kerwhaker  v.  Railroad  Co..  3  Ohio  St.  188 61 

Kevworth  v.  Hill,  3  Barn.  &  Aid.  6s5 204 

Kidder  v.  Parkhurst,  3  Allen,  3.13 14 

t  Kiff  V.  Youmans,  86  N.  Y.  324  77 

Kilham  v.  Ward,  2  Mass.  2:36 20 

Kimball  v.  Billings,  55  Me.  147 205 

King  V.  Lake,  2  Vent.  28 117 

tKing  V.  Patterson,  49  N.  J.  Law,  417,  9  Atl. 

Rep.  705 145 

Kingv.  Railroad  Co.,  66  N.  Y.  181,  184 240 

King  V.  Root,  4  Wend.  114,  139 134 

tKingsburv  v.  Bradstreet  Co.,  116  N.  Y.  211, 

22  N.  E.  Rep.  365 126,  145 

tKirk  V.  Gregorj-,  1  Exch.  Div.  55 196 

t  Kirkpatrick  v.  Reeves,  121  Ind.  280,  22  N.  E. 

Rep.  139 258 

Klinck  V.  Colbv,  46  N.  Y.  427 139,  147 

tKlumph  v.  Dunn,  66  Pa.  St.  141 115 

Knauss  v.  Brua,  107  Pa.  St.  s5 181 

Knight  V.  Abert,  6  Pa.  St.  472 7 

tKnight  V.  Railroad  Co.,  lOS  Pa.  St.  250 267 

Knot  V.  Gav,  1  Root,  66 97 

+  Knox  v.  Tucker,  48  Me.  373 163 

Kohn  V.  Lovett,  44  Ga.  251 7 

Kolsti  V.  Railroad  Co.,  32  Minn.  133,  19  N.  W. 

Rep.  655 227 

Koney  v.  Ward,  36  How.  Pr.  2.55 193 

Kramer  v.  Railroad  Co.,  25  Cal.  434 247 

Kramer  v.  Stock,  10  Watts,  115 105 

Kraushaar  v.  Mever,  72  N.  Y.  602 .  267 

Krebs  v.  Oliver,  12  Gray,  239 142 

tLaherty  v.  Hogan,  13  Daly,  533 194 

Lakin  v.  Ames,  10  Cush.  19> 151 

+Lamb  v.  Stone,  11  Pick.  .526 15 

Lampet  v.  Starkey,  Id  Coke.  46 151 

Lancaster  County  2sat.  Bank  v.  Moore,  78  Pa. 

St.  407,  412 51 

Lander  v.  Seaver,  32  Vt.  123 81 

Landt  v.  Hilts,  19  Barb.  2S3 92 

Lane  v.  Cotton,  1  Ld.  Ravm.  646,  12  Mod.  472..  214 

+  Lange  v.  Benedict,  73  >;.  Y.  12 212 

tLangford  v.  Railroad  Co.,  144  Mass.  431, 11  N. 

E.  Rep.  697  104 

tLangridge  v.  Levy,  2  Mees.  &  W.519, 4  Mees. 

&  W.  337 67 

Laning  v.  Railroad  Co..  49  N.  Y.  522 242 

tLanning  v.  Railroad  Co.,  49  N.  Y.525 247 

t  Lansing  v.  Stone,  37  Barb.  15 53 

Larmore  v.  Iron  Co..  101  N.   Y.  391,  4  N.  E. 

Rep.  7.52 :  31  Hun,  87.  imin 5,  219 

tLarso'?  v.  Furlong.  50  Wis.  6S1,  8  N.  W.  Rep. 

1  i  63  Wis.  323,  23  2f.  W.  Rep.  5S4 191 


Pa-re 

Laumier  v.  Francis,  23  Mo.  181 171 

Laverty  v.  Snethen,  68  N.  Y.  .522 200 

tLavery  v.  Crooke,  52  Wis.  612,  9  N.  W.  Rep. 

599 219 

Lawrence  v.  Hagerman,  56  111.  68 105 

tLawrence  v.  Spence,  99  N.  Y.  669,  2  N.  E. 

Rep.  145 219 

Lawson  v.  State,  .30  Ala.  14 70 

tLayton  V.  Harris,  3  Har.  (Del.)  406 128 

tLeader  v.  Moxton,  3  Wils.  461 25 

Leame  v.  Brav,  3  East,  593,  .595,  .597 .50.  .52.  229 

tLeavitt  v.  Fletcher,  60  N.  H.  l!52 26.5 

Ledley  V.  Hays,  1  Cal.  160 215 

Lee  v.  Bayes,  18  C.  B.  .599,  607 ^05 

Lee  V.  Gansel,  Cowp.  1 161 

tLee  V.  Kendall,  11  N.  Y.  Supp.  131,  56  Hun, 

610 110 

Lee  V.  Robinson,  25  Law  J.  C.  P.  249,  18  C.  B. 

599 205 

+Le  Forest  V.  Tolman,  117  Mass.  109 267 

tLehigh  Val.  R.  Co.  v.  Greiuer,  113  Pa.  St.  600, 

6  Atl.   Rep.  24*5 225 

Le  Maistre  v.  Hunter,  Brightlv,  N.  P.  49S 101 

tLent  V.  Railroad  Co.,  120  N.  Y.  467,  24  N.  E. 

Rep.  653 225 

Leonard  v.  Collins,  70  N.  Y.  90 243 

tLeonard  v.  Columbia,  etc.,  Co.,  84  N.  Y.  48. ..  24 s 

Lew  V.  Langridge,  4  Mees.  &  W.  337 (,3,  t>4 

Lewis  V.  Chapman,  16  N.  Y.  369 126,  14:3 

tLewis  V.  Clark,  .59  Vt.  363,  8  Atl.  Rep.  15S.. ..  203 

Lienow  v.  Ritchie,  8  Pick.  235 154 

+Like  V.  McKinstrv,  3  Abb.  Dec.  62 150 

tLiles  V.  Gaster,  42  Ohio  St.  631 147 

tLimpus  V.  Omnibus  Co.,  1  Hurl.  &  C.  526 239 

Lincoln  V.  Hapgood,  11  Mass.  .3.50 20 

t  Lindlay  v.  Horton,  27  Conn.  58 12S 

tLinnehan  v.  Sampson,  126  Mass.  .506 2^37 

Little  V.  Hackett,  116  U.  S.  366,  6  Sup.  Ct.  Rep. 

391 235,  2.36 

Little  V.  Lathrop,  5  Greenl.  3.56 163 

Livingston  v.  McDonald,  21  Iowa,  160 171 

tLobdell  V.  Stowell,  51  N.  Y.  70 203 

Lock  V.  Ashton,  12  Q.  B.  871 90 

tLockhart  v.  Geir,  54  Wis.  133,  11  N.  W.  Rep. 

254 159 

tLockwood  Co.  v.  Lawrence,  77  Me.  297 116 

Logan  V.  Austin,  1  Stew.  (Ala.)  476 74 

Lombard  v.  Oliver,  5  Gray,  8 103 

t  London,  B.  &  S.  C.  R.  Co.  v.  Truman,  L.  R.  11 

App.  Cas.  45 1S9 

tLong  v.  Warren,  68  N.  Y.  426 11 

tLongmeid  v.  Hollidaj',  6  Exch.  767,  6  Law  & 

Eq.  562 65,  67 

Lonsdale,  Earl  of,  v.  Nelson,  2  Barn.  &  C.  302, 

3  Dow.  &  R.  556 189 

Looney  v.  McLean,  129  Mass.  33 51 

Lord  V.  Wormwood,  29  Me.  282 163 

tLord  Cromwell's  Case,  4  Coke,  13 115 

Losee  v.  Buchanan,  51  N.  Y.  476 223 

tLosee  v.  Clute,  51  N.  Y.  494 65 

tLoughlin  v.  State,  105  N.  Y.  159,  11  N.  E.  Rep. 

371 247 

Lovett  V.  Railroad  Co.,  9  Allen,  557 239 

tLowe  V.  Wartman,  47  N.  J.  Law,  413,  1  Atl. 

Rep.  489 103 

Lucas  V.  Railroad  Co.,  6  Gray,  64 225 

Ludwig  V.  Pillsbury,  35   Minn.  256,  28  N.   W. 

Rep.  .505 227 

tLumbv  V.  Allday,  1  Cromp.  &  J.  301 121 

Lumley  v.  Gye,  2  El.  &  Bl.  216,  247,  22  Law.  J. 

Q.  B.  463 46-4><,  110 

Luscombe  v.  Steer,  17  Law  T.  (N.  S.)  229.  .16.5,  166 

Luse  v.  Jones,  39  N.  J.  Law,  707 200 

Luther  v.  Winnisimmet  Co.,  9  Cush.  171... .170,  i;i 

tLybe's  Appeal,  106  Pa.  St.  626  28 

Lyke  v.  Van  Leuven,  4  Denio,  127 1.52 

Lyle  v.  Clason,  1  Caines,  .5><1 131 

Lynch  v.  Knight,  9  H.  L.  Cas.  577,  589,  .595 

2!>,  29,  46,  124 

tLvnch  V.  McNallv,  73  N.  Y.  347 194 

Lvnch  V.  Mayor.  e"tc..  76  N.  Y.  60 171 

Lvnch  V.  Nurdin,  1  Adol.  &  E.  (N.  S.)  29;  1  Q. 

B.  29 34,  40,  67 

Lynch  v.  Railway  Co.,  24  Hun,  506 S6 

Lyons  v.  Manin,  S  Adol.  &  E.  5i2 238 

I  McAdams  v.  Calcs,  24  Mo.  223 . .  25& 


XVi 


CASES  CITED. 


Paee 

McAllister  v.  Hammon  d,  6  Cow.  342 229 

McAlDin  V.  Powell,  70  N.  Y.  126 5 

t  McAudrews  v.  Burns,  39  N.  J.  Law,  117 247 

tMoAndrews  v.  Collerd,  42  N.  J.  Law,  1S9 ISO 

tMcCafferty  v.  Railroad  Co.,  61  N.  Y.  17S 242 

t  McCaffrey's  Appeal,  105  Pa.  St.  2.i3 170 

McCardle  v.  McGinley,  S6  Ind.  538 105 

+  McCarthy  v.  De  Armit,  99  Pa.  St.  63 95 

McClurg  V.  Ross,  5  Bin.  218 125 

McCorkle  v.  Binns,  5  Bin.  345 125 

McCormick  V  Sisson,  7  Cow.  715 98 

McCullough  V.  Com.,  67  Pa.  St.  32 97 

McDonald  v.  Mallory,  77  N.  Y.  547 266 

McDonald  v.  Rooke,  2  Bing.  N.  C.  217,  2  Scott, 

3.59 108 

t  Macdougall  v.  Knight,  17  Q.  B.  Div.  636 145 

McGregor  v.  Thwaites,  3  Barn.  &  C.  24 I'iS 

McKay  v.  State,  44  Tex.  43 71 

+  McKeon  v.  See,  51  N.  Y.  300 178 

■j-  Mackerney  v.  Erwin,  Hut.  101 156 

McKown  V.  Hunter,  30  N.  Y.  627 98 

McLaughlin  v.  Cowley,  127  Mass.  316 146 

tMcLeod  V.  Railroad  Co.,  58  Vt.  727,  6  Atl. 

Rep.  648 267 

McManus  v.  Crickett,  1  East,  106 238 

McMorris  v.  Simpson,  21  Wend.  610 198 

McNamee  v.  Minke,  4vt  Md.  122 105 

tMcNay  v.  Stratton,  9  111.  App.  215 86 

McPherson  v.  Daniels,  10  Barn.  &  C.  203 123 

tMcPherson  v.  Runyon,  41  Minn.  .524,  43  N.  W. 

Rep.  392 106 

Madrazo  v.  VVilles,  3  Barn.  &  Aid.  353 267 

Magee  v.  Scott,  9  Cush.  148 205 

Magnin  v.  Dinsmore,  70  N.  Y.  410 200 

Mahan  v.  Brown,  13  Wend.  261 2,  60 

tMairs  v.  Real-Estate  Ass'n,  89  N.  Y.  498 153 

Malachy    v.    Soper,    3    Bing.   N.  C.   371,   383, 

386 12,  13,  1.50 

Mali  V.  Lord,  39  N.  Y.  881 238 

tManders  v.  Williams,  4  Exch.  339 202 

tMangam  v.  Railroad  Co.,  38  N.  Y.  4.55 233 

Mangan  v.  Atterton,  4  Hurl.  &  C.  388,  L.  R.  1 

Exch.  2.39 86 

tMangold  v.  Thorpe,  33  N.  J.  Law,  134 216 

Mann  v.  President,  etc.,  91  N.  Y.  .500 242,  243 

Maunville  Co.  v.  Worcester,  138  Mass.  89 267 

tMarble  v.  Chapin,  132  Mass.  225 132 

Marbourg  v.  Smith,  11  Kan.  554 105 

Marcy  v.  Marcy,  32  Conn.  308 267 

tMarine  Ins.  Co.  v.  St.   Louis,  etc.,  R.  Co.,  41 

Fed.  Rep.  643 181 

Marks  v.  Townsend,  97  N.  Y.  590,  599 92 

Marsh  v.  Ellsworth,  .50  N.  Y  309 146,  147 

tMarsh  v.  Falker,  40  N.  Y.  562 262 

tMarshallv.  Heller,  55  Wis.  392,  11  N.  W.  Rep. 

236 86 

Marshall  v.  Railroad  Co.,  11  C.  B.  6.55 56 

Martin  v.  Pavne,  9  Johns.  387 218 

Martin  v.  Riddle,  26  Pa.  St.  415 171 

Martin  v.  Still  well,  13  Johns.  275 Ill 

•tMarts  V.  State,  26  Ohio  St.  162 77 

Martyn  v.  Burliogs,  Cro.  Eliz.  589 120 

Marzetti  v.  Williams,  1  Barn.  &  Adol.  415 21 

Mason   v.  Hill,  2  Nev.  &  M.  747;  ;'   Barn.   & 

Adol.  304 ;  5  Barn.  i.  Adol.  1 21 ,  22,  176 

Mason  v.  Keeling,  1  Ld.  Raym.  606, 12  Mod.  3  52. .  153 
Masser  v.  Railroad  Co.,  68'  Iowa,  6U2,  27  N.  W. 

Rep.  776 227 

Masten  v.  Deyo,  2  Wend.  424 95 

Matrever's  Case,  30  Ass.  pi.  38 156 

Matthew  v.  OUerton,  Comb.  218 74 

Matthews  v.  Beach,  5  Sandf.  2.56 126 

May  V.  Burdett,92Q.  B.  101,9Adol.  &E.  (N.  S.) 

101 192-194 

Mayer  v.  Walter,  64  Pa.  St.  2.'^3 105 

tMaynard  v.  Maynard,  49  Vt.  297 260 

Mavor  of  Lvnn  v.  Mayor  of  London,  4  Term  R. 

130,  141,  143,  144 19 

Mayrant  v.  Richardson,  1  Nott  &  MeC.  347 125 

tMayse  v.  Cocksedge,  Willes,  637 1.56 

M  eade's  Case,  Le win,  185 76 

tMehrhof  Bros.  Brick  Manuf'g  Co.  v.  Railroad 

Co.,  51  N.  J.  Law,  56,  l(j  Atl.  Rep.  12 185 

Meigs  V.  Lister,  23  M.  J.  Eq.  200 167 

Melan  v.  Duke  of  Fitzjames,  1  Bos.  &  P.  13S. . .  2.57 

Mellor  V.  Spateman,  1   Saund.  34(k(,  note  2 20 

Melville  v.  Brown,  15  Mass.  82 2J2 


Page 

Mercer  v.  Sparks,  Noy,  35 129 

Mercer  v.  Walmsley,  5  Har.  &  J.  27 219 

Merchants'  Bank  v.  State  Bank,  10  Wall.  604..  225 

Merritield  v.  Worcester,  110  Mass.  216,  219 186 

Merritt  v.  BrinkerhofE,  17  Johns.  306,  320..  174,  175 

Merry  weather  v.  Nixan,  8  Term  R.  186 69 

Messenger  v.  Dannie,  141  Mass.  335,  5  N.  E. 

Rep.  283 227 

tMessinger's  Appeal,  109  Pa.  St.    285,  4  Atl. 

Rep.  162 175 

t  Meve;-  v.  Amidon,  45  N.  Y.  169 257 

tMielenz  v.  Quasdorf,  68  Iowa,  726,  28  N.  W. 

Rep.  41 133 

Milan,  The,  Lush.  3SS 235 

Millen  and  Fawdrv"s  Case,  Latch,  120 1.52 

Miller  v.  Adams,  7  Lans.  133,  52  N.  Y.  409. .  .90,  93 

Miller  v.  Baker,  1  Mete.  (Mass. )  27 196 

tMiller  v.  David,  L.  R.  9  C.  P.  118 13 

Miller  v.  Fenton,  11  Paige,  18 69 

Miller  v.  Laubach,  47  Pa.  St.  1.54 173 

tMiller  v.  Mayor,  etc.,  109  U.  S.  385,  3  Sup.  Ct. 

Rep.  228 189 

Miller  v.  Miller,  8  Johns.  74,  77 113 

t  Miller  v.  Woodhead,  36  Hun,  643,  inci:> 4 

Milliken  v.  Thorndike,  103  Mass.  3^3 2.58 

Mills  V.  City  of  Brooklvn,  .32  N.  Y.  489 213 

tMing  V.  Woolfolk,  116  U.   S.  59:»,  6  Sup.  Ct. 

Rep.  489 33 

tMinors  v.  Leeford,  Cro.  Jac.  114 115 

Mires  v.  Solebay,  2  Mod.  242,  245 205 

Mr.  of  St.  Mark's  Case,  7  Edw.  III.  8ifj 1.56 

tMitchell  V.  Crassweller,  13  C.  B.  237 239 

Mitchell  V.  State,  54  Amer.  Dec.  253 90 

Mitchell  V.  Wall,  111  Mass.  492 99 

Mitchell  V.  Williams,  11  Mees.  &  W.  205 108 

Moens  v.  Hevworth,  10  Mees.  &  W.  157 252 

Mogul  S.  S.  Co.  V.  McGregor,  21  Q.  B.  Div.  544, 

23  Q.  B.  Div.  598 110 

Mohawk  &  H.  R.  Co.  v.  Artcher,  6  Paige,  83.. ..166 
tMonongahela  City  v.  Fischer,  111  Pa.  St.  9,  2 

Atl.  Rep.  87 225 

Moody  V.  Baker,  5  Cow.  351,  3.54 150 

Mooney  v.  Miller,  103  Mass.  220 265 

tMoore  v.  Bank,  4  N.  Y.  S.  378 145 

tMore  v.  Perry,  fil  Mo.  174 1.55 

tMorey  v.  Fitzgerald,  56  Vt.  487 161 

Morgan  v.  City  of  Hallowell,  57  Me.  377 7 

Morgan  v.  Hughes,  2  Tei-m  R.  225,  232 103 

Morgan  v.  Lingen,  S  Law  T.  (N.  S.)  800 127 

Morgan  v.  Varick,  8  Wend.  587 196 

tMorley  v.  Chase,  143  Mass.  396,  9  N.  E.  Rep. 

767 95 

Morris  v.  Langdale,  2  Bos.  &  P.  284 44,  150 

Morse  v.  Crawford,  17  Vt.  499 51 

Mostyn  v.  Fabrigas,  Covvp.  161 267 

Mott  V.  Ice  Co.,  73  N.  Y.  .543 88,  239 

tMoulton  V.  Water  Co.,  137  Mass.  163 175 

Mount  Morris  Square,  etc..  In  re,  3  Hill,  14, 

21,  22 212 

+Mowrv  V.  Chase,  100  Mass.  79 86 

tMuggridge  v.  Eveleth,  9  Mete.  (Mass.)  2.33...  197 

Muldoon  V.  Rickey,  103  Pa.  St.  1 10 105 

tMulherrin  v.  Railroad  Co.,  81  Pa.  St.  375 6 

tMuller  v.  McKesson,  10  Hun,  44 191 

Mulligan  v.  Elias,  13  Abb.  Pr.  (N.  S.)  2.9 167 

Mulry  V.  Insurance  Co.,  5  Grav.  ;'41 43 

Munn  V.  Illinois,  94  U.  S.  113-134 187 

Munns  v.  Dupont,  3  Wash.  C.  C.  37 95,  100 

tMunster  v.  Lamb,  11  Q.  B.  Div.  588 147 

tMurdock  v.  Railroad  Co.,  137  Mass.  293 80 

tMurphy  v.  Deane,  101  Mass.  4.55 2:^5 

Murphy  v.  Martin,  58  Wis.  279,  16  N.  W.  Rep. 

603 90 

tMurphy  v.  Moore,  (Pa.)  11  Atl.  Rep.  ((55 104 

Murphy  v.  Railroad  Co.,  30  Conn.  184,  29  Conn. 

496 : 266 

Murphy  v.  Walters,  34  Mich.  180 89 

Murray  v.  Railroad  Co.,  93  N.  C.  92 227 

Myers  v.  Gemmel,  1 0  Barb.  537 4 

Myers  v.  Malcolm,  6  Hill,  292 179 

tNarehood  v.  Wilhelm,  (•)9  Pa.  St.  64 1.57 

Neal  V.  Lewis,  2  Bay,  204 113 

Nebenzahl  v.  Townsend,  10  Dalv,  236 90 

Ncedham  v.  Railway  Co.,  38  Vt.  295 267 

tNcsbit  V.  Town  of  Garner,  75  Iowa,  314,  39  N. 
■\.  .  Lep.  5i0 236 


CASES  CITED. 


XVII 


Nettleton  v.  Sikes,  8  Mete.  (Mass.)  34 159 

Newark  Coal  Co.  v.  Upson,  40  Ohio  St.  17 106 

Newburgli   &  C.  Turnpike  Road   v.  Miller,  5 

Jotiiis.  Ch.  101 21 

Newcastle,  Duke  of,  v.  Clark,  8  Taunt.  602....  212 
tNew  Jersey  Steam-Boat  Co.  v.  Brockett,  121 

U.S.  637,  7  Sup.  Ct.  Rep.  1039 80 

Newkirk  v.  Sabler.  9  Barb.  652 160 

Newman  v.  Zachary,  Aleyn,  3 45 

+New  Orleans,  M.  &  C.  R.  Co.  v.  Banning,  15         I 

Wall.  649 242! 

■tNevv  YorV  v.  Lord,  18  Wend.  126 159 

tNew  York,  L.  E.  &  W.  R.  Co.  v.  Steinbren- 

ner,  47  N.  J.  Law,  161 236 

tNichols  V.  Nowling,  82  Ind.  4S8 69  I 

Nicholson  v.  Coghill,  4  Barn.  &  0.  21,  6  Dowl.  | 

&R.  I? 103  I 

f Nicholson  v.  Railroad  Co.,  41  N.  Y.  525 220  ! 

Niekleson  v.  Strvker,  10  Johns.  115 218  ; 

tNilea  V.  Howe,  57  Vt.  388 267 

tNitro-Glycerine  Case,  15  Wall.  524 53: 

Niven  v.  Munn,  IC  Johns.  48 112  i 

Noonan  v.  City  of  Albany,  79  N.  Y.  475 172  : 

^Northern  Pac.  R.  Co.  v.  Herbert,  116  U.  S.         ; 

642,  6  Sup.  Ct.  Rep.  59l> 244  | 

Northern  R.  Co.  v.  Page,  22  Barb.  130 86  ' 

Nowel  V.  Smith,  Cro.  Eliz.  709 .  163  i 

tNoyes  v.  Boscawen,  64  N.  H.  361,  10  Atl.  Rep.         i 

690 .  236  ; 

tO'Brien  v.  McGlinchy,  68  Me.  552 233  I 

O'Callaghan  v.  Cronan,  121  Mass.  114. 60  I 

tOgborn  v.  Francis,  44  N.  J.  Law,  441. . ...     .  219  ! 

Ogburn  v.  Connor,  46  Cal.  346 171  | 

Olmsted  v.  Brown,  12  Barb.  657 122,  124' 

Olmsted  v.  Miller,  1  AVend.  506 122  i 

O'Meill  V.  James,  43  N.  Y.  84-93.. 192  | 

Onslow  V.  Home,  3  Wils.  177,  1S8..117,119,  120,  126  l 

Orange  Bank  v.  Brown,  3  Wend.  161,  162 60 

tOrme  v.  Smith,  Glib.  Ch.  82 156 

Ormsby  V.  Douglass,  37  N.  Y.  477 143 

Osborne  V.  Sture,  3  Sail".  182 160 

tOvertoii  V.  Freeman,  11  C.  B.  867 242 


Packard  v.  Getman,  4  Wend.  613 

Padgett  .'.  Sweeting,  65  Md.  404,  4  Atl. 
887 


Rep. 


Page  V.  Bent,  2  Mete.  (Mass.)  371 

Page  V.  Cus"hing,  38  Me.  .52.3 99, 

Page  V.  Olcott,  13  N.  H.  3',)9 

Palmer  ,\  Fleshees,  Sid.  167 

Palmer  v.  Jarmain,  2  Mees.  &  W.  282 

Pangburn  v.  Bull,  1  Wend.  345 

Panton  v.  Holland,  17  Johns.  92 

tPanton  v.  People,  114  111.  505,  2  N.  E.  Rep.  411 

Parker  v.  Farley,  10  Cush.  279 

Parker  V.  Foote,  19  Wend.  309 

Parker  V.  Huntington,  2  Gray,  124. 14, 

Parker  V.  Langley,  Gilb.  Cas.  163 

Parker  v.  Mise,  27  Ala.  480 

Parker  V.  Mitchell,  11  Adol.  &  E.  788  

Parker  v.  Walrod,  13  Wend.  296 

Parker  v.  Woollen  Co.,  2  Black,  545,  551 

Parks  V.  Newburyport,  10  Gray,  28 

Parmiter  v.  Coupland,  6  Mees.  &  VV.  105 

Paslev  V.  Freeman,  2  Smith,  Lead.   Cas.  94,  3 

Term  R.  51,  61,  6;^ 9,  31,  130,  251-253, 

Pater  v.  Baker,  3  Man.  G.  &  S.  868 

Patrick  v.  Colerick,  3  Mees.  &  W.  453 

tPatlerson  v.  Nutter,  78  Me.  509,  7  Atl.  Rep. 

273 

•fPatterson  v.  Wilkinson,  55  Me.  42 

Pattison  v.  Jones,  8  Barn.  &  C.  585 

tPaul  V.  Hadley,  23  Barb.  521 

tPaul  V.  Summerhayes,  4  Q.  B.  Div.  9 

Payne  v.  Donegan,  9  111.  App.  566 

Payne  v.  Partridge,  1  Salk.  12 

Pearson  v.  Skelton,  1  Mees.  &  W.  504 

tPease  v.  Railroad  Co.,  101  N.  Y.  367,  5  N.  E. 

Rep.  37 

tPease  v.  Smith,  61  N.  Y.  477 201, 

Peck  V  Elder,  3  Sandf.  129 

tPeck  V.  Goodberlett,  109  N.  Y.  ISO.  16  N.  E. 

Rep.  350 

tPeck  V.  Herrington.  109  111.  611 

Peek  V.  Gurney,  L.  R.  6  H.  L.  377,  409 

Pennsylvania  v.  Bridge  Co.,  18  How.  421   

CHASE — B 


204 

138 
258 
108 
163 

26 
198 
105 
229 

77 
102 
2.4 
110 
105 
194 
167 
196 
166 
171 
125 

255' 

149 

158 

81 
149 
138 
260 
153 
105 
107 

69 

80 
206 
166 

172 
172 
254 

169 


Page 
tPennsylvania  Coal  Co.  v.  Banderoon,  113  Pa. 

St.  126,  6  Atl.  Rep.  453 28 

Pennsylvania  Co.  v.  Hope,  80  Pa.  St.  373 43 

tPennsylvania  Co.  v.  Roney.  89  Ind.  453 237 

tPennsylvania  R.  Co.  v.  Coon,  111  Pa.  St.  430, 

8  Atl.  Rep.  234 220 

Pennsylvania  R.  Co.  v.  Kerr,  62  Pa.  St.  353 ... . 

40,  41,  43 

Penrose  v.  Curren,  3  Rawle,  351 230 

Penruddock's  Case,  5  Coke,  100b,  101a 183,  190 

People  V.  Crosswell,  8  Johns.  Cas.  336.  354 

127,  133,  134 
tPeople  V.  Dann,  53  Mich.  490.  19  N.  W.  Rep. 

1.59 77 

People  v.  Goff,  52N.  Y.434 267 

tPeople  v.  Lead- Works,  82  Mich*  471,  46  N.  W. 

Rep.  735 170 

People  V.  Lilley,  43  Mich.  521, 525, 5  N.  W.  Rep. 

982 70,  71 

People  V.  Mayor,  etc. ,  2  Hill,  9,  11 212 

People  V.  Sands,  1  Johns.  78 179 

People  V.  Supervisors,  1  Hill,  195;  15  Wend. 

198  212 

People  V.  Williams,  4  Hill,  9 205 

Peoria  Marine  &  Fire  Ins.  Co.  v.  Frost,  37  IlL 

333 247 

Percival  v.  Hickev,  18  Johns.  2.57.  285 50,  151 

Perkins  v.  Mitchell,  31  Barb.  465 127 

tPerkins  v.  Mossman,  44  N.  J.  Law,  579 194 

Perkins  v.  Smith,  1  Wils.  328 205 

Perley  v.  Railroad  Co.,  98  Mass.  414 43 

Perry  v.  Man,  1  R.  I.  263 136 

tPerry  v.  Porter,  124  Mass.  338 136 

Peterson  v.  HafEner,  26  Amer  Rep.  81 70 

Pettigrew  v.  Evansville,  25  Wis.  223 171 

Phelps  V.  Nowlen,  72  N.  Y.  39 172 

t  Philadelphia  City  Pass.  Rv.  Co.  v.  Hassard,  75 

Pa.  St.  367 ' ". 228 

t  Philadelphia,  W.  &  B.  R.  Co.  v.  Hogeland,  66 

Md   149,  7  Atl.  Rep.  105  ." 236 

t  Philadelphia  &  R.  R.  Co.  v.  Derby,  14  How. 

468 239 

t  Philadelphia  &  R.  R.  Co.  v.  Hummell,  44  Pa. 

St.  375,  378 6,  7 

Philips  v.  Biggs,  Hardr.  164 69 

Phillips  v.  Hall.  8  Wend.  610 196 

Phillips  V.  Jansen,  2  Esp.  624 131 

Phvthian  v.  White,  1  Mees.  &  W.  216 1.54 

Pickard  v.  Collins,  23  Barb.  444 179 

t  Pickering  v.  James,  L.  R.  8  C.  P.  459 18 

Pierce  v.  Street,  3  Barn.  &  Adol.  397 103 

Pierson  v.  Glean,  1  N.  J.  I>aw,  37 l83 

Pigott  &  Shewry's  Case,  W.  Jones,  145;  Palm. 

444;  Latch,  153;  Noy,  84;  3Bulst.339;  Poph. 

166 26 

tPike  v.  Megoun,  44  Mo.  491 212 

Pilkington's  Case,  5  Coke,  76a 156,  157 

t  Pillow  v.  Bushnell,  5  Barb.  156 75 

Pindar  V.  Wadsworth,  2  East,  162 21 

tPiper  V.  Pearson,  2 Grav,  120 212 

+  Pittard  v.  Oliver,  1  Q.  B.  474 132 

Pitts  V.  Lancaster  Mills,  13  Mete.  (Mass.)  156..  174 
tPittsburgh  «&  L.  E.  R.  Co.  v.  Jones,  111  Pa. 

St.  204,  2  Atl.  Rep.  410 ...  185 

Pixley  v.  Clark,  35  N.  Y.  .523 179 

Pleasants  v.  Fant,  22  Wall.  121 225 

Plumer  v.  Robertson,  6  Serg.  &  R.  177 219 

Plummer  v.  Webb,  1  Ware,  79 247 

Poe  v.  Mondford,  Cro.  Eliz.  620 120 

Pointer  v.  Gill,  2  Rolle,  Abr.  140 166 

Polhill  V.  Walter,  3  Barn.  &  Adol.  114 252,  254 

Polkinhorn  v.  Wright,  8  Q.  B.  (N.  S.)  197 78 

tPoUard  V.  Lyon,  91  U.  S.  225 115,  124 

Pollett  v.  Long,  56  N.  Y.  200 40,  41 

Pollilt  V.  Long,  58  Barb.  20 166 

Pollock  V.  Hastings,  88  Ind.  248 115 

Pollock  V.  Lester,  11  Hare,  266 165 

Pomfret  v.  Ricroft.  1  Saund.  321,  323,  note  3. . 

151,  160 
tPopo  V.  Boyle.  98  Mo.  527, 11  S.  W.  Rep.  1010...  183 

tPost  V.  Stoekwell,  34  Hun,  373 68 

Potts  V.  Imlav,  4  N.  J.  Law,  330 105 

Poulk  V.  Slocum,  3  Blackf.  421 '.0 

Powers  V.  Russell,  13  Pick.  09,  76 53 

Povnton  V.  Forster,  3  Camp,  til,  note  b 107 

Pozzi  V.  Shipton,  8  Adol.  &  E.  963 56 

I'ratt  V.Gardner,  2  Cush.  68 2iJ8 


xvm 


CASES  CITED. 


Paso 

Presbrey  v.  Railway,  103  Mass.  1,  6,  7 187 

President,  etc.,  of  the  Baltimore  &  Y.  Turnpike 

Road  V.  Boone,  45  Md.  344 56 

tPricev.  Seeley,  10  Clark  &  F.  23 98 

Prideaux  v.  Bunnett,  1  C.  B.  (N.  S.)  613 262 

Pridham  v.  Tucker,  Yel.  153 117 

tPriestley  v.  Fowler,  3  Mees.  &  W.  1 63 

tProctor  V.  Webster,  16  Q.  B.  Div.  112 145 

tProprietors  of  the  Wyrley  &  Essington  Canal 

Navigation  v.  Bradley,  7  East,  368 25 

tPursell  V.  Stover,  110  Pa.  St.  43,  20  Atl.  Rep. 

403 159 

Putnam  v.  Pavne,  13  Johns.  312 192 

Putnam  v.  Railroad  Co. ,  55  N.  Y.  108 40 

Putnam  v.  Wyley,  8  Johns.  337 196 

Quincy  Canal  v.  Newcomb,  7  Mete.  (Mass.)  276, 

283 184 

tQuinn  V.  Power,  87  N.  Y.  535 239 

tRadclifl  V.  Mayor,  etc.,  of  Brooklyn,  4  N.  Y. 

195 28 

Radenhurstv.  Coate,  6  Grant,  Ch.  140 167 

tRadley  v.  Railroad  Co.,  L.  R.  1  App.  Cas.  754  226 

Railroad  Co.  v.  Gladmon.  15  Wall.  401 227 

tRailroad  Co.  v.  McDonnell,  43  Md.534 228 

tRailroad  Co.  v.  Skillman,  39  Ohio  St.  444 80 

Railroad  Co.  v.  Stout,  17  Wall.  657 226 

tRamsey  v.  Wallace,  100  N.  C.  75,  6  S.  K  Rep. 

638 258 

Randall  v.  Brigham,  7  Wall.  523 208 

Randall  v.  Cleaveland,  6  Conn.  328 154 

Randall  v.  Hazelton,  12  Allen,  412 11,  60 

tRandlette  v.  Judkins,  77  Me.  114 15 

tRankin  v.  Ekel,  64  Cal.  446,  1  Pac.  Rep.  895,.  215 

tRapson  v.  Cubitt,  9  Mees.  &  W.  710 63 

Rathbun  V.  Payne,  19  Wend.  399 229,  230 

tRathke  v.  Gardner,  134  Mass.  14 172 

Ravenga  v.  Mackintosh,  2  Barn.  &  C.  693 101 

Rawstron  V.  Taylor,  11  Exch.  369 172 

Ray  V.  Law,  Pet.  C.  C.  207 105 

Rayne  V.  Taylor,  14  La.  Ann.  406 136 

tRaynsford  v.  Phelps,  43  Mich.  342,  5  N.  W, 

Rep.  403 214 

Reese  River  Silver  Min.  Co.  v.  Smith,  L.  R.  4 

H.  L.  64,  79 254 

Reg.  V.  Boden,  1  Car.  &  K.  395,  397 79 

Reg.  V.  Callingwood,  2  Ld.  Raym.  1116 46 

Reg.  V.  Cohen,  2  Denison,  Cr.  Cas.  249 78 

Reg.  V.  Haines,  2  Car.  &  K.  368,  371 66 

Reg.  V.  Hemmings,  4  Fost.  &  F.  50 79 

Reg.  V.  James,  1  Car.  &  K.  530 71 

Reg.  V.  Mabel,  9  Car.  &  P.  474 96 

Reg.  V.  Rodway,  9  Car.  «&  P.  784 78 

Reg.  V.  St.  George,  9  Car.  «fc  P.  483 71 

Reg.  V.  Slowly,  12  Cox,  Crim.  Cas.  269 78 

Reg.  V.  Swindall,  2  Car.  &  K.  232,  233 66 

Reg.  V.  Thompson,  Leigh  &  C.  225 78 

Reid  V.  Gifford,  Hopk.  Ch.416 166 

Revis  V.  Smith,  18  C.  B.  126 14 

Rex  V.  Creevey,  1  Maule  &  S.  273 145 

Rex  V.  Cross,  2  Car.  &  P.  483 188 

Rex  v.  Harvey,  2  Barn.  &  C.  257 127 

Rex  V.  Hugeins,  2  Ld.  Raym.  15S3 153 

Rex  V.  Milton,  Moody  &  M.  107 78 

Rex  V.  Pease,  4  Barn.  &  Adol.  30 187 

Rexv.  White,  1  Burrows,  337 25,  166,  179 

Rex  V.  Williams,  6  Car.  &  P.  390 78 

Reynolds  v.  Shuler.  5  Cow.  325 196 

Rice  V.  Coolidge,  121  Mass.  393 146,  147 

Rice  v.  Manley,  66  N.  Y.  83 61 

Richardson  v.  Railroad  Co.,  98  Mass.  85 267 

Richardson  v.  Smith,  1  Camp.  277 31 

tRiddle  V.  McGinnis,22  W.  Va.  253 219 

Riderv.  White,  65  N.  Y.  54 192 

Riding  v.  Smith,  1  Exch.  Div.  91 110 

Rigaut  V.  Gallisard,  7  Mod.  78, 2  Ld.  Raym.  809, 

Holt,  50 217 

tRindge  v.  Sargent,  64  N.  H.  294,  9  Atl.  Rep. 

723 172 

Ring  V.  Wheeler,  7  Cow.  725 146 

Ripley  v.  Severance,  6  Pick.  474 10 

Risney  V.  Selby,  1  Salk.  211 251 

Roath  v.  DriscoU,  20  Conn.  533 27 

Roberts  v.  Clarke,  IS  Law  T.  (N.  S.)  49. ...165,  166 

tRoberts  v.  Herbert,  1  Sid.  5 150 

tRoberts  v.  Rose,  4  Hurl.  &  C.  103 191 


Pive- 

tRoberts  v.  Young,  1  Brown  &  G.  173 loij 

Robinson  v.  Burleigh,  5  N.  H.  225 2U5 

Robinson  v.  Chamberlain,  34  N.  Y.  389 213 

tRobinson  v.  Cone,  22  Vt.  214 233 

tRobinson  v.  Railroad  Co.,  66  N.  Y.  11 236 

Robinson  v.  State,  31  Tex.  170 71 

tRobinson  v.  Waller,  1  Rolle,  449 156 

tRobinson  v.  Walter,  3  Bulst.  269,  270 156- 

tRockford,  R.  L  &  S.  L.  R.  Co.  v.  Delaney,  82 

111.  198 228 

Rockingham  Mut.  Fire  Ins.  Co.  v.  Bosher,  39 

Me.  253 248 

Roderigas  v.  Institution,  63  N.  Y.  460 267 

Rogers  v.  Clifton,  3  Bos.  &  P.  587 138 

tRogers  v.  Manufacturing  Co.,  144  Mass.  198, 

11  N.  E.  Rep.  77 244 

Rogers  v.  Spence,  13  Mees.  &  W.  571,  581 78 

Root  V.  King,  7  Cow.  613 136 

Ross  v.  Butler,  19  N.  J.  Eq.  294 167 

Ross  V.  Johnson,  5  Burrows,  2825 200 

Ross  V.  Norman,  5  Exch.  359 103- 

tRosse  V.  Bramsteed,  2  Rolle,  433 156 

Roswell  V.  Prior,  12  Mod.  635 183 

Rounds  V.  Railroad  Co. ,  64  N.  Y.  129 88 

Roussin  V.  Benton,  6  Mo.  592 154 

tRoy  V.  Goings,  112  111.  656 102 

tRoyce  v.  Maloney,  57  Vt.  325 136 

Ruckley  v.  Kiernan,  7  Ir.  C.  L.  75 138 

Ruggles  V.  Lesure,  24  Pick.  190 159 

tRundell  v.  Kalbfus,  125  Pa.  St.  123,  17  Atl. 

Rep.  238 110- 

Runkle  v.  Meyer,  3  Yeates,  518 12.'> 

Russell  V.  Richards,  10  Me.  429,  11  Me.  371 158 

Russell  V.  Shuster,  8  Watts  &  S.  309 97 

Rust  V.  Low,  6  Mass.  94,  99,  100 163 

Ruter  V.  Foy,  46  Iowa,  132 75- 

Rutherf  ord  v.  Holmes,  66  N.  Y.  370 92 

Ryan  V.  Railroad  Co.,  35  N.  Y.  210 40,  41.43- 

Ryppon  V.  Bowles,  Cro.  Jac.  373 183 

tSt.  Clair  St.  Ry.  Co.  v.  Eadie,  43  Ohio  St.  91, 

1  N.  E.  Rep.  519 236- 

St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L. 

Cas.  642,  .35  Law  J.  Q.  B.  66 30,  177 

tSt.  Joseph  Fire  &  Marine  Ins.  Co.  v.  Leland, 

90  Mo.  177,  2  S.  W.  Rep.  431 214 

Salem  India  Rubber  Co.  v.  Adams,  23  Pick. 

256 26S 

tSalisbury  v.  Howe,  87  N.  Y.  128 257 

Salkwell  v.  Milwarde,  26  Hen.  VI.  c.  23 163 

Salt  Springs  Nat.   Bank  v.  Wheeler,  48  N.  Y. 

492 200,201 

Salvin  v.  Coal  Co.,  L.  R.  9  Ch.  App.  705 164 

Sampson  v.  Henry,  13  Pick.  36 76- 

Sampson  v.  Smith,  8  Sim.  272 166- 

Samuel  v.  Pavne,  Doug.  359 94 

Sanderson  v.  "Caldwell,  45  N.  Y.  405 127 

tSandfordv.  Clarke,  21  Q.  B.  Div.  898 183 

San  ford  v.  Railroad  Co.,  23  N.  Y.  343 80,  239 

Sarjeant  v.  Blunt,  16  Johns.  73 198 

Saunders  v.  Newman,  1  Barn.  &  Aid.  258 22 

tSavacool  V.  Boughton,  5  Wend.  170 216- 

Savage  v.  Brewer,  16  Pick.  453 103- 

Savil  V.  Roberts,  1  Salk.  14 105 

Savile  v.  Jardine,  2  H.  Bl.  532 lia 

Savill  V.  Roberts,  12  Mod.  208 107 

Sayles  v.  Briggs,  4  Mete.  (Mass.)  421,  426 103 

Scheer  V.  Keown,  29  Wis.  586 90 

tScheffer  v.  Railroad  Co.,  105  U.  S.  249 48 

Schroyer  v.  Lynch,  8  Watts,  453 214 

Scott  V.  Dock  Co. ,  3  Hurl.  &  C.  596 222 

tScottv.  Grover,  56Vt.499 163 

Scott  v.  Rogers,  31  N.  Y.  676 198^ 

Scott  V.  Shepherd,  3  Wils.  403,  2  W.  Bl.  892. . . 

33,  36,  37,  40,  43,  50 

Seaman  v.  Cuppledick,  Owen,  150 76,  78 

Seaman  v.  Netherclift,  1  C.  P.  Div.  540 14 

Seddon  V.  Connell,  10  Sim.  81 69' 

Seibert  V.  Price,  5  Watts&S.  438 100 

Selfridge,  Trial  of,  160 77 

Selma,  R.  &  D.  R.  Co.  v.  Lacy,  43  Ga.  461 267 

tSemayne's  Case,  5  Coke,  91(t 215- 

Seneca  Road  Co.   v.   Auburn  &   R.  R.  Co.,  5 

Hill,  170 38 

Severy  V.  Nickerson,  120  Mass.  306 220 

tShafer  v.  Ahalt,  4S  Md.  171 124 

tShapcott  V.  Mugford,  1  Ld.  Raym.  188 156- 


CASES  CITED. 


ZIX 


Page  I 

Sharp  V.  Powell,  L.  R.  7  C.  P.  253 35 

tSliavv  V.  Kaler,  106  Mass.  448 202 

fcjbay  V.  Thompson.  59  Wis.  540,  18  N.  W.  Rep.    ^_  | 

Sheldon'v!  MlV33  Mi'ch.'m".'. '.'.'.'.*.'.*.*.'.*  V.'.V..     90  | 

Sheltoa  v.  Nance,  7  B.  Mon.  12S 125 

Sheridan  v.  New  Quay  Co.,  4  C.  B.  (N.  S.) 

618 205 

Sherwood  V.  Salmon,  5  Day,  439,  449 264 

Shields  v.  Yonge,  15  Ga.  349 247 

Shingleton  v.  Smith,  Lulw.  14S1,  1483 78 

Shipley  v.  Todhunter,  7  Car.  &  P.  680 125 

Shipp  V.  McCraw,  3  Murph.  463 267 

tShippy  V.  Au  Sable,   (Mich.)  48  N.  W.  Rep. 

554. 233 

tShorter  V.  People,  2  N.  Y.  193 77 

Shury  v.  Piggot,  3  Bulst  339,  Poph.  166 22 

tSilver   Spring  Bleaching  &  Dyeing  Co.  v. 

Wanskuck,  13  R.  I.  611 176 

Simar  V.  Canaday,  o3N.  Y.  306 262 

•tSimmons  v.  Mitchell,  L.  R.  6  App.  Cas.  156..  115 

Simpson  v.  Hornbeck,  3  Laos.  53 91 

Slaughter's  Adm'rv.  Gerson,  13  WalL  383 265 

Slingsby  v.  Barnard.  1  Rolle,  430 25 

Smith  V.  Benson,  1  Hill,  176 158 

Smith  V.  Boston.  7  Cush.  254 184 

Smith  V.  Bull,  17  Wend.  32:5 266 

Smith  V.  Chadwick,  L.  R.  9  App.  Cas.  187,  190, 

193,  20  Ch.  Div.  27,  44.  67 250,  254,  255,  257 

Smith  V.  Countryman,  30  N.  Y.  681 264 

Smith  V.  Howard,  28  Iowa,  51 14 

Smith  V.  Lewis,  3  Johns.  157 13,  14 

Smith  V.  London,  etc.,  Docks  Co.,  L.  R.  3  0.  P. 

326 220 

Smith  V.  Pelah,  2  Strange,  1264 192,  193 

Smith  V.  Richardson,  Willes,  24 129 

Smith  V.  Shaw,  12  Johns.  257 90 

Smith  V.  Smith,  56  How.  Pr.  316 105 

Smith  V.  Spooner,  3  Taunt.  254 149 

Smith  V.  State,  12  Ohio  St.  4^)6 74 

Smith  V.  Tavlor,  1  Bos.  &  P.  (N.  R.)  196 120 

Smith  V.  Tohstall,  Carth.  3 8, 10,  11 

tSmith  V.  Walter,  125  Pa.  St.  453,  17  AtL  Rep. 

465 102 

, 115 

, 148 

126 


tSnag  V.  Gee,  4  Coke,  16a 

Snell  V.  Snow,  13  Mete.  (Mass.)  278 

Snyder  v.  Andrews,  6  Barb.  43 

tSohn  V.  Cambern,  106  Ind.  302,  6  N.  E.  Rep. 


813. 


tSolinsky  v.  Bank,  b5  Tenn.  368,  4  S.  W.  Rep. 

836 

Solomons  v.  Dawes,  1  Esp.  b3 

Soltau  V.  De  Held,  2  Sim.  (X.  S.)  133.. 177, 178, 

Somerville  V.  Hawkins,  IOC.  B.  .5i3 

Somner  v.  Wilt,  4  Serg.  &  R.  24 

tSorenson  v.  Dundas,  5U  Wis.  335,  7  N.  W.  Rep. 

259 

Soule  V.  Railroad  Co.,  24  Conn.  575 

tSouter  V.  Codman,  14  R.  I.  119 

Southam  v.  Allen,  3  Salk.  326 

South  Carolina  v.  Georgia,  93  U.  S.  4,  12 

tSouthern  Development  Co.  v.  Silva,  125  U.  S. 

247,  8  Sup.  Ct.  Rep.  881 

Southold  V.  Daunston,  Cro.  Car.  269 

tSpaits  V.  Poundstone,  87  Ind.  522 

Sparhawk  v.  Railway  Co..  54  Pa.  St.  401 

Spencer  v.  Blackman,  9  Wend.  167 197, 

Spencer  v.  McGowen,  13  Wend.  256 

Spencer  V.  Railway  Co.,  8  Sim.  193 

Spofiford  V.  Harlow,  3  Allen,  176 

Spooner  v.  Manchester,  133  Mass.  270 200, 

tSpooner  v.  Railroad  Co.,  115  N.  Y.  22, 21  N.  E. 

Rep.  696 

Sprague  v.  Kneeland,  12  Wend.  161 

Spring  Co.  v.  Edgar,  99  U.  S.  645 

tSproul  V.  Pillsbury,  72  Me.  20 

Stackpole  v.  Healy,  16  Mass.  38 

Standish  v.  Steam-Ship  Co..  Ill  Mass.  512 

tStanley  v.  Gaylord,  1  Cush.  .536 

tStanley  V.  Powell,  [1891,]  1  Q.  B.  Div.  86 

tStaples  V.  Smith,  48  Me.  470 

Starling  v.  Tu  rner,  2  Lev.  50,  2  Vent.  25 

Starr  v.  Bennett,  5  Hill.  303 

Starr  V.  Jackson,  11  Mass.  519 

State  V.  Benedict,  11  Vt.  235 

State  V.  Blackwell,  9  Ala.  79 

Stale  V.  Brown,  5  Har.  (Del.)  507 


185 

215 
205 
185 

135 

101 

86 
266 

77 
119 
189 

262 

45 

132 

177 

198 

76 

185 

8 

201 

237 

68 

194 

132 

163 

87 

196 

53 

197 

20 

264 

1.55 

71 

70 

97 


Page 
State  V.  Davis,  35  Amer.   Dec.  735,  1  Ired.  125, 

127 70-ri 

State  V.  Elliot,  UN.  H.  540 78 

tState  V.  Godfrey,  17  Or.  300,  20  Pac.  Rep.  625    71 

tState  V.  Goold,  53  Me.  279 80 

tState  V.  Greer,  22  W.  Va.  800 77 

tState  V.  Hampton,  63  N.  C.  13 73 

State  V.  Holly  way.  41  Iowa,  200 79 

tState  V.  Jones,  95  N.  C.  588 81 

tState  V.  Koontz,  S3  Mo.  323 215 

tState  V.  Middleham,  62  Iowa.  150,  17  N.  W. 

Rep.  446 77 

State  V.  Moore,  31  Conn.  479 8 

State  V.  Mullikin,  8Blackf.  260 188 

State  V.  Nash.  88  N.  C.  618 79 

State  V.  Neely,  74N.  C.  425 71 

tState  V.  Peacock,  40  Ohio  St.  333 77 

State  V.  Pendergrass,  2  Dev.  &  B.  365 81 

tState  V.  RaUroad  Co.,  80  Me.  430, 15  AtL  Rep. 

K6 236 

State  V.  Railroad  Co.,  45  Md.  41 267 

tState  V.  Railroad,  52  N.  H.  528 228 

tState  V.  Sears,  86  Mo.  169 71 

State  V.  Sbepard,  10  Iowa,  126 71 

State  V.  Smith,  2  Humph.  457 71 

tSteele  V.  Dunham,  26  Wis.  393 213 

Steele  v.   Southwick,  9  Johns.  214,  1  Amer. 

Lead.  Cas.  135 125,  127 

Steinmetz  V.  Kelly,  72  Ind.  442 75 

Stephen  s  v.  Elwall,  4  Maule  &  S.  259 205 

Stephenson  v.  Hart,  4  Bing.  476 204 

Stetson  v.  Faxon,  19  Pick.  147 184 

Steuer  v.  State,  59  Wis.  472,  18  N.  W.  Rep.  433    89 

Stevens  v.  Fassett,  27  Me.  280 81 

Stevens  v.  Hartwell,  11  Mete.  (Mass.)  542 122 

Stevenson  v.  Havden,  2  Mass.  406 113 

tSteward  v.  Gromett,  7  C.  B.  (N.  S.)  191 107 

Stewart  v.  Ha wlev,  21  Wend.  552 89 

tStewart  v.  Ranche  Co.,  128  U.  S.  383,  9  Sup. 

Ct.  Rep.  101 260 

tStewart  v.  Sonneborn.  98  U.  S.  187 101 

tStitzell  V.  Reynolds,  59  Pa.  St.  488 149 

Stockton  V.  Frey,  4  Gill,  406 56 

Stokes  V.  Saltonstall,  13  Pet.  181 56 

tStone  V.  Cartwright,  6  Term  R.  411 25 

Stone  V.  Cooper,  2  Denio,  293,  294 125,  128 

Stone  V.  Denny,  4  Mete.  (Mass.)  151 258 

tStone  V.  Hills,  45  Conn.  44 239 

Stone  V.  Hooker,  9  Cow.  154 69 

tStone  V.  Railroad  Co.,  115  N.  Y.  104,  21  N.  E. 

Rep.  712 228 

Storey  v.  Challands.  8  Car.  &  P.  2;i4 140 

Stout  V.  Wood,  IBlackf.  71 267 

Stout  V.  Wren,  1  Hawks,  420 74 

Stow  V.  Converse,  3  Conn.  325 125 

Stowball  V.  Ansell,  Comb.  116 213 

Stowel  V.  Zouch,  Plo w.  3tH 230 

tStowell  V.  Otis,  71  N.  Y.  36 202 

tStriegel  v.  Moore,  55  Iowa,  S8,  7  N.  W.  Rep.  413  50 
tStringham  v.  Hilton,  111  N.  Y.  ISS,  IS  N.  E. 

Rep.  870 244 

Struthers  v.  Railway,  b~  Pa.  St.  282 187 

tStuder  v.  Bleistein,  115  N.  Y.  316, 22  N.  E.  Rep. 

243 265 

tSturtevant  V.  Root,  27N.  H.  69 149 

tSuUivan  v.  Railroad  Co.,  148  Mass.  119,  IS  N. 

E.  Rep.  678 80 

Sumner  v.  Utlev,  7  Conn.  2.57 120 

Sunbolf  V.  Alf ord.  3  Mees.  &  W.  248 87 

Sutton  v.  Buck,  2  Taunt.  302,  312 159 

Sutton  V.  Johnstone,  1  Term  R.  493,  550 107 

Swaim  v.  Stafford,  3  Ired.  259,  4  Ired.  392 100 

Swans,  Case  of,  7  Coke,  18 194 

tSweeny  v.  Railroad  Co. ,  10  Allen,  368 220 

Sweetapple  v.  Jesse,  5  Barn.  <St  AdoL  27 149 

Swett  V.  Cutts,  50  N.  H.  439 171 

Syedsv.  Hay,  4  Term  R.  2*30 198 

tSymondsv.  Hall,  37  Me.  354 215 

Taaffe  v.  Townes,  3  Moore.  P.  C.  41,  note 207 

Taggartv.  Commonwealth,  21  Pa.  St.  527 190 

Tallman  v.  Green,  3  Sandf.  437 264 

Tapley  v.  Wainwright,  5  Barn.  &  Adol.  395...  154 

Taplin's  Case,  2  East,  P.  C.  712 71 

Tapp  v.  Lee,  3  Bos.  &P.  367 31 

Tarver  v.  State,  4^3  Ala.  354 70 

Taylor  V.  Ashton,  11  Mees.  &  W.  401 252,255 


CASES  CITED. 


Pape 

Taylor  V.  Church,  8  N.  Y.  453 143,  144 

tTaylor  v.  Guest,  53  N.  Y.  262 32 

Taylor  v.  Markham,  Cro.  Jac.  234;    Yelv.  157; 

i  Brown  &  G.  215 78 

Taylor  v.  People,  6  Parker,  Grim.  R.  353...16tj,  167 

Taylor  V.  Sej-mour,  6  Cal.  513 215 

tTaylor  V.  Strong,  3  Wend.  364 98 

Taylor  v.  Whitehead,  2  Doug.  745,  747 151,  160 

Taylor  V.  Wilson,  1  N.  J.  Law,  362 105 

tTeall  V.  Felton,  IN.  Y.  537 214 

Tebbetts  v.  Goding,  9  Gray,  254 149 

Tenant  V.  Golding,  1  Salk.  21 223 

Tessymond's  Case,  1  Lewin,  Cr.  Cas.  169 66 

Tewksbury  v.  Bucklin,  7  N.  H.  518 163 

Thayer  v.  Arnold,  4  Mete.  (Mass. )  589 103 

Thayer  v.  Boston,  19  Pick.  511,  514 184 

tThomas  v.  Blasdale,  147  Mass.  433,  18  N.  E. 

Rep.  214 115 

Thomas  v.  Rouse,  2  Brev.  75 105 

Thomas  V.  Winchester,  6  N.  Y.  397 40 

Thompson  v.  Bond,  1  Camp.  4 31 

Thorley  v.  Kerry,  4  Taunt.  355 125 

Thorogood  v.  Bryan,  8  C.  B.  115 233-236 

tThorp  V.  Burling,  11  Johns.  285 37 

tThorp  V.  Thorp,  12  Mod.  461 1.56 

tThurber  v.  Railroad  Co..  60  N.  Y.  326 228 

tThurston  V.  Adams,  41  Me.  419 216 

Timothy  v.  Simpson,  1  Cromn.,  M.  &  R.  757. ..  96 
Tipping  V.  Smelting  Co.,  4  Best  &  S.  608-615, 11 

H.  L.  Cas.  642 166,  168,  179,  185 

Todd  V.  Hawkins,  8  Car.  &  P.  88 141, 143 

Todd  V.  Railroad  Co.,  3  Allen,  18,  7  Allen, 207..  225 

tTollit  V.  Sherstone,  5  Mees.  &  W.  283 63 

Tomkins  V.  Haile,  3  Wend.  406 204 

Tomlinson  v.  Warner,  9  Ohio,  104 106 

tTonawanda  R.  Co.  v.  Munger,  5  Uenio, 255.163, 220 
Toogood  V.  Spyring,  1  Cromp.,  M.  &  R.  181..139,  144 
Tourtellot  v.  Rosebrook,  11  Mete.  (Mass.)  460..    53 

Towne  v.  Wiley,  23  Vt.  355 201 

Townsend  v.  Railroad  Co. ,  56  N.  Y.  295 87 

tTracy  V.  Cloyd,  10  W.  Va.  19 214 

Tremain  V.  Cohoes  Co.,  2  N.  Y.  163 179 

tTryon  v.  Whitmarsh,  1  Mete.  (Mass.)  1 32 

tTuberville  v.  Savage,  1  Mod.  3 72 

TufE  V.  Warman,  5  C.  B.  (N.  S.)  573 224 

Tunbridge  Dippers,  Case  of,  2  Wils.  414 20 

tTunstall  v.  Christian,  HO  Va.  1 28 

Turner  V.  Mevmott,  1  Bing.  158 152 

tTurpenv.  Booth,  56  Cal.  65 212 

Tuson  V.  Evans,  12  Adol.  &  El.  733 147 

Tuthill  V.  Milton,  Cro.  Jac.  222 118 

tTuttle  V.  Railway,  132  U.  S.  189,  7  Sup.  Ct.  Rep. 

1166 244 

Tutty  V.  Alewin,  11  Mod.  221 120 

tTwigg  V.  Ryland,  62  Md.  380 194 

Tyler  v.  Wilkinson,  4  Mason,  397,  400^05 

21,  23,  173 
Type  &  Stereotype  Foundry  Co.  v.  Mortimer, 

7  Pick.  166 10 

tUnderwood  v.  Robinson,  106  Mass.  296 216 

United  States  v.  Coolidge,  1  Gall.  488, 1  Wheat. 

415 117 

United  States  v.  Elder,  4  Cranch,  C.  C.  507 188 

United  States  v.  Hudson,  7  Cranch,  32 117 

United  States  v.  Worrall,  2  Dall.  384 117 

Upton  v.  Vail,  2  Johns,  isl,  6  Johns.  182 9,262 

Van  Bergen  v.  Van  Bergen,  3  Johns.  Ch.  283. . .     21 

Vandeuburgh  v.  Truax,  4  Denio,  464 40 

Vanderbilt  V.  Mathis,  5  Duer,  304 98,  101 

Vanderbilt  v.  Turnpike  Co.,  2  N.  Y.  479 238 

Vanderwiele  v.  Taylor,  65  N.  Y.  341 171 

Vanduzor  v.  Linderman,  10  Johns.  106 98,  105 

Van  Lien  v.  Manufacturing  Co.,  14  Abb.  Pr. 

(N.  S.)  74 224 

Van  Rensselaer  v.  Witbeck,  2  Lans.  499 168 

Van  Tassel  v.  Capron,  1  Denio,  850 119 

tVan  Vechten  v.  Hopkins,  5  Johns.  211 149 

tVan  Winkle  v.  Boiler  Co.,  53  N.  J.  Law,  240, 19 

All.  Rep.  473 67 

Van  W vc-k  v.  Aspinwall,  17  N.  Y.  190 144 

Vasse  v.  Smith,  G  Cranch,  226 201 

Vaughan  v.  Wenlove,  32  E.  C.  L.  319,  740 40 

Vaughan  v.  Railway,  5  Hurl.  &  N.  679,  685,  687  187 

Vaughn  v.  Congdon,  56  Vt.  Ill 90 

Veduer  v.  lellowb,  ~u  N.  Y.  126 80,  87 


Venafra  v.  Johnson,  10  Bing.  301;  3  Moore  & 

S.  847;  6  Car.  &  P.  50 Iii3 

Vernon  v.  Keys,  13  East,  633,  4  Taunt.  488.. .11,  364 

tVerplanckv.  Van  Buren,  76  N.  Y.  259 110 

Vicars  v.  Wilcocks,  8  East,  1,  2  Smith,  Lead. 

Cas.  (8th  Ed.)  554 44,  48,  122,  123,  150 

Village  of  Delhi  v.  Youmans,  45  N.  Y.  362 37 

tVillage  of  Pine  City  v.  Munch,  42  Minn.  342, 

44  N.  W.  Rep.  197 189 

Villers  v.  Monsley,  2  Wils.  403 125 

tVinal  V.  Core,  18  W.  Va.  1 101 

Vincent  V.  Stinehour,  7  Vt.  62 .52 

tViningv.  Baker,  53  Me.  544 2)2 

Von  Latham  v.  Libby,  38  Barb.  345 b9 

Von  Latham  v.  Rowan,  17  Abb.  Pr.  238,  248....     98 
Vrooman  v.  Lawyer,  13  Johns.  339 153 

tWahl  V.  Walton,  30  Minn.  506,  16  N.  W.  Rep. 

397 93 

Waitev.  Railway  Co.,  EL,  Bl.  &  EL  719 235 

Wakeman  v.  Robinson,  1  Bing.  213 .53 

Walden  v.  Mitchell,  2  Vent.  265,  266 117 

tWales  V.  Miner,  89  Ind.  118 217 

t Walker  v.  Cronin,  107  Mass.  5.55 47 

Walker  V.  Milner,  4  Post.  &  F.  745 261 

Walker  v.  Railway,  103  Macs.  10-14 187 

Wall  V.  Hoskins,  5  Ired.  177 2i)7 

Waller  v.  Railway  Co.,  32  Law  J.  Exch.  205. . .  246 
Walter  v.  Selfe,  4  Eng.  Law  &  Eq.  18,  4  De 

Gex  &  S.  323 165,  177 

tWalton  V.  Car  Co.,  139  Mass.  556,  3  N.  E.  Rep. 

101 239 

Ward  v.  Center,  3  Johns.  271 31 

Ward  v.  Conatser,  4  Baxt.  64 51 

Ward  V.  Macauley,  4  Term  R.  480,  489 196.  2()3 

Ward  V.  Railroad  Co.,  11  Abb.  Pr.  (N.  S.)  411..  225 

Ward  V.  Weeks,  7  Bing.  211 1^2 

+ Warren  v.  Perkins,  Palm.  223 156 

Warren  v.  Warren,  1  Cromp.,  M.  &  R.  250 147 

Washburn  v.  Cooke,  3  Denio,  110,  113 148,  146 

tWashington  &  G.  R.  Co.  v.  McDade,  135  U.  S. 

554,  10  Sup.  Ct.  Rep.  1044 244 

tWatbrokev.  Griffith,  Moore,  877 156 

Watkins  v.  Lee,  5  Mees.  &  W.  370 103 

Watson  v.  Vanderlash,  Het.  69 120 

Watson  V.  Watson,  9  Conn.  140 216 

Weatherston  v.  Hawkins,  1  Term  R.  110. ..129,  137 

Weaver  V.  Bush,  8  Term  R.  78 76,  153 

Weaver  V.  Ward,  Hob.  134 51.  230 

Webb  V.  Railroad  Co.,  49  N.  Y.420 40,  43 

Webber  V.  Gage,  39  N.  H.  183 166 

Webber  V.  Gay,  24  Wend.  485 216 

Weir  V.  Bell,  3  Exch.  Div.  238 254,  25.5 

Weller  V.  Baker,  2  Wils.  414 20 

Wellington  v.  Small,  3  Cush.  145 14 

Wells  V.  Howell,  19  Johns.  385 163 

Wells  v.  Watling,  2  W.  Bl.  1233 20 

tWelsh  V.  Bell,  32  Pa.  St.  12 19i> 

Wendell  V.  Railroad  Co.,  91  N.  Y.  420 227 

tWennhak  V.  Morgan,  20  Q.  B.  Div.  635 132 

Wesson  v.  Iron  Co.,  13  Allen,  95 177 

West  V.  Smallwood,  3  Mees.  &  W.  418 89,  90 

Westcott  V.  Middleton,  43  N.  J.  Eq.  478, 11  AtL 

Rep.  490 1T7 

Western  Bank  of  Scotland  v.  Addie,  L.  R.  1  H. 

L.  Sc.  145,  162 253,255 

Wetmore  v.  Mellinger,  64  Iowa,  751,  18  N.  W. 

Rep.  870 105 

Whaler  v.  AhL  29  Pa.  St.  98 175 

Wheatley  V.  Baugh,  25  Pa.  St.  .528 27 

Wheeler  v.  Brant,  23  Barb.  324 192,  lti3 

tWheeler  v.  Lawson,  103  N.  Y.  40,  8  N.  E.  Rep. 

360 197 

tWheeler  v.  Navigation  Co.,  125  N.  Y.  155, 162, 

26  N.  E.  Rep.  24S 56 

tWheeler  v.  Nesbitt,  24  How.  544 101 

tWheeler  V.  Wheeler,  33  Me.  347 203 

Wheeler  V.  Whiting,  9  Car.  &  P.  263 97 

Wheeler  and  Appleton's  Case,  Godb.  340 131 

Wheelock  V.  Wheelwright,  5  Mass.  103 198 

Whipple  V.  Fuller,  11  Conn.  582 105 

tWhile  V.  Carr,71  Me.  555 102 

White  V.  Carroll,  42  N.  Y.  161 14 

tWhite  V.  Nellis,  31  N.  Y.  405 219 

White  V.  Nicholls,  3  How.  266,291 139,  145 

tWhite  y.  Phelps,  12  N.  H.  382 2u3 

Whitehead  v.  Malhaway,  85  Ind.  S5..., 75 


CASES  CITED. 


Page 

Whiteley  v.  Adams,  15  C.  B.  fN.  S.)  393 139 

Whitfield  V.  Le  De  Spencer,  Cowp.  754 214 

Whitford  v.  Railroad  Co.,  2:iN.  Y.  465 266 

Whitney  v.  Bui-tholomew,  21  Conn.  213 166 

Whittakcr  v.  Bradle^y.  7  Dowl.  &  R.  649 127 

Widrip  V.  Oyer,  13  Johns.  124 Ill 

Wier's  Appeal,  74  Pa.  St.  280 167,  170,  179, 180 

tWiggins  V.  Hathaway,  6  Barb.  632 214 

Wigglesworth  v.  Dallison,  1  Smith,  Lead.  Cas. 

963  267 

tWildee  v.  McKee,  111  Pa.  St.  335,  2  AtL  Rep. 

108 110, 

tWilds  V.  Railroad  Co.,  24  N.  Y.  430 225 

Willard  v.  Cambridge,  3  Allen,  574 1S4 

Williams  v.  Hill,  19  Wend.  305 123 

t Williams  v.  Holdredge,  22  Barb.  396 116 

Williams  v.  Morland,  2  Barn.  &  C.  910 20 

Williams  v.  Safford,  7  Barb.  309 160 

Williams  v.  Smith,  108  E,  C.  L.  596 92 

tWilliams  v.  Spencer,  5  Johns.  352 215 

Wills  V.  Noves,  12  Pick.  824 99 

tWilson  V.  Dubois,  35  Minn.  471,29  N.  W.  Rep. 

63 15 

Wilson  V.  Mayor,  etc.,  1  Denio,  595,  598 312,  213 

tWilson  V.  Merrv,  L.  R.  1  H.  L.  326 247 

Wilson  V.  Reed,  3  Johns.  175 203 

Wilton  V.  Webster,  7  Car.  &  P.  198 217 

WincheUv.  Hicks,  18  N.  Y.  558 192 

tWinn  V.  Abeles,  35  Kan.  85,  10  Pac.  Rep.  443    28 

tWinnard  v.  Foster,  Lutw.  1596 156 

tWinship  V.  Keale,  10  Gray,  382 202 

Winsmore  v.  Greenbank,  Willes,  577,  583. .  ..15,  183 
Winterbottom  v.  Wright,  10  Mees.  &  W.  109. .     66 

Winterbourne  v.  Morgan,  11  East,  396,  402 

151  156 
t Winters  v.  Railroad  Co.,  99  Mo,  509,  12  S.  w! 

Rep.  652 233 

Wintrin  gham  v.  Laf oy,  7  Cow.  735 196 

Wise  V.  Wilcox,  1  Day,  22 31 

tWitte  V.  Hague,  2  DowL  &  R.  83 63 

tWood  V.  Graves,  144  Mass.  365, 11  N.  E.  Rep. 

567 108 

tWood  V.  Leadbitter,  18  Mees.  &  W.  838 159 


Page 

Wood  V.  Manley,  11  Adol.  &E.  84 158 

Wood  V.  Sutcliffe,  2  Sim.  (N.  S.)  165 166 

Wood  V.  Waud,  13  Jur.472,  3  Exch.  748 176 

Woodard  v.  Dowsing,  2  Man.  &  R.  74 125 

Woodard  v.  Railroad  Co.,  10  Ohio  St.  121 207 

tWooden  v.  Railroad  Co.,  126  N.  Y.  10,26  N.  E. 

Rep.  1050 267 

Woodman  v.  Tufts,  9  N.  H.  92 183 

Woodmansie  v.  Logan,  2  N.  J.  Law,  68 105 

Woods  V.  Finnell,  13  Bush,  623 105 

tWoods  V.  Wiman,  47  Hun.  362 144 

Woodside  v.  Adams,  30  N.  J.  Law,  417 199 

+ Wood  worth  v.  Mills,  61  Wis.  44,20  N.  W.  Rep. 

728 104 

tWoodyearv.  Schaefer,  57  Md.  384 176 

Wooley  V.  Batte,  2  Car.  &  P.  417 69 

Woolf  V.  Chalker,  31  Conn.  131,  137,  130..  ..192-194 

t Woolsey  v.  Morris,  96  N.  Y.  311 216 

tWren  V.  Weild,  L.  R.  4  Q.  B.  730 150 

Wright  V.  Howard,  1  Sim.  &  S.  190 21 

tWright  V.  Railroad  Co.,  25  N.  Y.  563,  4  Allen, 

283 233,  347 

Wright  V.  Ramscot,  1  Saund.  85 194 

Wright  V.  Wilcox,  19  Wend.  343 338 

tWykoff  V.  Stevenson,  46  N.  J.  Law,  326 206 

tWymore  v.  Mahaska  Co.,  78  Iowa,  396,  43  N. 

W.  Rep.  264 233 

Yates  V.  Joyce,  llJohns.  136,140 8-11 

Yates  V.  Lansing,  5  Johns.  282,  291,  9  Johns. 

396 207,  212 

tYeaton  v.  Railroad  Corp.,  135  Mass.  418 244 

York  V.  Davis,  11N.H.241 163 

Yorkv.  Johnson,  116  Mass.  4S2 140,141 

Youl  V.  Harbottle,  Peake,  49 204 

Young  V. ,  1  Ld.  Raym.  725 151,  160 

tYoung  V.  Clegg,  93  Ind.  371 132 

Young  V.  Macrae,  3  Best  &  S.  264,  32  Law  J. 

Q.B.  6 11-13 

Young  V.  Spencer,  10  Barn.  &  C.  145 20 

Yundt  V.  Hartrunft,  41  IlL  9 217 

tZier  V.  Hofflin,  33  Minn.  66,  31  N.  W.  Rep.  863  13S 


t 


LEADING  CASES 


UPON 


THE  LAW  OF  TORTS. 


GENERAL   PRINCIPLES. 


No  tort  committed,  unless  a  legal  right  or  legal  duty  is  violated. 


(68  111.478.) 

Guest  et  a/,  v.  Reynolds. 

{Supreme  Court  of  niinois.     Sept.  Term,  1873. ) 

Adjoining  Laxd-Owxeks — Obstruction  of  Light 

AND    A  IK. 

An  owner  of  land  who  erects  thereon  a  fence 
or  wall  which  obstructs  the  access  of  light  and 
air  to  a  house  on  adjacent  land,  and  also  obstructs 
the  view  from  such  house,  is  not  liable  in  dam- 
ages for  the  obstruction  to  the  owner  of  such  ad- 
joining premises,  since  no  legal  right  to  light,  air, 
and  prospect  exists,  in  the  absence  of  proof  that 
such  a  right  has  been  acquired  bj'  grant  or  pre- 
scription ;  nor  is  such  fence  or  wall,  not  being  con- 
structed of  offensive  materials,  to  be  deemed  a 
nuisance.  It  seems  that  the  doctrine  of  "ancient 
lights"  is  not  applicable  in  this  country. 

Appeal  from  circuit  court,  Cook  county; 
John  G.  Ko(;krs,  Judge. 

Slfeper  &  Whitoii,  for  appellants.  A. 
Garrison,  for  appellee. 

Breese,  C.  J.  This  was  an  action  on 
the  case,  brought  to  the  circuit  court  of 
Cook  county,  to  recover  damages  for  an 
alleged  obstruction  by  defendants  of  the 
free  use  of  the  light  and  air  jiassiug  lateral- 
ly over  the  premises  of  defendants  to  plain- 
tiff's premises. 

The  declaration  contains  two  counts,  in 
sub.stance  as  follows:  Plaintiff,  after 
averring  his  residence  on  a  particular  lot, 
73  South  Sangamon  street,  in  Cliicago,  in 
a  house  iiaving  doors,  windows,  and  views 
of  the  street,  through  which  light,  air,  and 
views  had  and  ought  to  enter  into  the 
dwelling-house,  anri  the  views  should  not 
have  been  obstructed,  and  the  use  of  the 
light  and  air  and  views  should  not  liave 
been  obstructed,  and  ought  to  be  used  b^ 
plaintiff  and  his  family, for  the  wholesome 
use  and  occupancy  thereof,  avers:  Yet 
the  said  defendants,  well  knowing  the 
premises,  but  contriving,  wrongfully  and 
unjustly  intending,  to  injure  the  plaintiff 
and  his  family,  and  to  deprive  them  of 
the  useof  said  doors,  windows,  and  views, 
and  to  incommode  him  in  the  use  and  en- 
joyment thereof,  and  to  aniujy  plaintiff  in 
Iiis  use  and  i)ossession  and  enjoyment  of 
said  piemises,  on,  etc.,  wroiigtuliy  and  in- 
CUASE — 1 


juriously  caused  and  erected  and  raised 
a  high  board  fence,  and  caused  to  be  erect- 
ed, constructed,  and  raised  on  the  north 
part  of  said  lot  anddwelling-houseaiid  lot, 
and  adjoining  thereto,  a  high  board  ob- 
struction. The  obstruction  was  made  and 
constructed  next  to  the  north  line  of  the 
house  and  lot  No.  73  South  Sangamon 
street.  It  was  made  upon  the  south  line 
of  an  alley  next  north  of  said  house  and 
lot,  and  close  adjoining,  and  was  so  made 
and  constructed,  and  is  now  standing, 
and  in  such  close  proximity,  that  it  hides 
the  original  fences.  It  nowhere  protects 
the  alley,  and  it  is  so  raised  and  construct- 
ed, and  of  such  height,  made  at  certain 
places  in  its  construction,  and  so  near  to 
the  windows,  that  it  wrongfully  and  inju- 
riously darkens  the  said  dwelling-house, 
obstructs  the  light  to  said  windows,  and 
is  so  made  as  to  obstruct  the  view  to  said 
street,  and  in  fact  is  so  constructed, 
wrongfully  and  injuriously,  as  aforesaid, 
as  to  interfere  with  the  use  of,  and  the 
light  and  air  and  views  from,  said  dwell- 
ing house,  and  therebj'  rendei's  said  dwell- 
ing-house of  but  little  use  to  i)laintiff  and 
his  family;  and  defendants  have  wrongful 
ly  and  injuriously  kept  and  continued  said 
high  board  fence  obstruction,  etc., by  them 
erected,  as  aforesaid,  for  a  long  space  of 
time,  to-wit,  etc.;  and  the  same  is  now 
continued,  by  means  of  which  premises  the 
said  dwelling-house,  with  its  appurte- 
nances, are  greati\'  darkened  and  injured, 
and  they  continued  darkened  and  injured, 
and  the  light,  air,  and  views  were  and  are 
hindered  and  prevented  from  coming  into 
and  through  the  said  window's,  into  said 
dwelling-house,  and  the  same  hath  there- 
by been  rendered,  and  is,  close,  uncomfort- 
able, unwholesome,  and  measurably  un- 
fit for  habitation;  and  plaintiff  and  his 
family  have  thereby  been,  and  still  are, 
greatly  annoj'ed  and  incommoded  in  the 
use,  possession,  and  enjoyment  of  said 
dwelling-house  and  lot,  with  the  appurte- 
nances, to-wit.  etc. ;  to  the  damage,  etc. 
The  second  couut,  omitting  the  formal 
and  introductory  parts,  avers:  Yet  the 
said   defendants,  well  knowing  the  prem- 


2 


LAW  OF  TORTS. 


ises,bnt  oontimiing,  etc.,  and  intending  to 
injure  and  prejudice  plaintift',  and  to  deprive 
him  of  tlie  use,  benefit,  and  enjoyment  of 
the  said  windows,  and  to  annoy  and  in- 
commode him  in  the  use,  possession,  and 
enjoyment  of  said  dwelling-house,  with  the 
appurtenances,  heretofore,  to-wit,  etc., 
(with  a  conlinvanclo,)  wrongfull3%  mali- 
ciously, willfully',  and  injuriously  greatly 
darkened  said  windows,  and  hindered  and 
prevented  the  light  and  air  from  coming 
and  entering  into,  into  and  through  said 
windows,  into  said  dwelling-house  and 
premises,  and  the  same  have  thereby  been 
rendei-ed,  and  are,  uncomfortable,  un- 
wholesome, and  unfit  for  habitation,  and 
the  plaintiff  thereby  has  been,  and  is, 
greatlj'  annoyed  and  incommoded  in  the 
use,  possession,  and  enjoyment  of  said 
dwelling-house  and  premises,  with  the  ap- 
purtenances, to  his  damage,  etc.  The  plea 
was,  not  guilty.  Under  instructions  from 
the  court,  the  plaintiff  had  a  verdict  for 
$8-38,  a  portion  of  which  was  remitted,  and 
judgment  rendered  for  $iiOo.  To  reverse 
this  judgment  defendants  appeal. 

We  have  copied  literally  the  counts  of 
the  declaration,  in  order  that  the  precise 
nature  of  the  action  may  be  seen  and  un- 
derstood. Api^ellee  claims  that  the  grnv- 
aniea  of  the  action  is  not  for  obstructing 
light  and  air  and  views,  but  it  is  for  erect- 
ing an  unsightly  fence  and  of  offensive  ma- 
terials. The  logic  of  the  narr.  certainly 
is  that,  plaintiff  having  the  right  to  use  the 
light  and  air  and  views,  he  has  been  de- 
prived of  the  same  by  the  erection  of  the 
fence,  and  by  which  erection  his  dwelling 
has  been  darkened,  rendered  unwholesome, 
and  unfit  for  habitation.  The  latter  is  al- 
leged as  a  consequence  of  the  erection  of 
the  fence,  and  the  right  to  build  the  fence 
is  denied,  because  of  plaintiff's  right  to 
have  free  course  for  light  and  air,  and  an 
unobstructed  view  from  his  windows. 
The  gravamen  oi  the  action  most  clearly 
is  the  obstruction  of  light,  air,  and  view, 
the  rest  being  consequences,  merely,  of  the 
obstruction.  It  is  not  alleged  the  mate- 
rials which  composed  the  obstruction — the 
fence— were  of  an  offensive  nature,  or  that 
the  air,  in  passing  through  or  over  the 
fence,  became  charged  with  offensive  mat- 
ter. The  averment  simply  is,  by  erecting 
a  fence,  the  passage  of  light  and  air  has 
been  obstructed,  by  which  the  dwelling 
has  been  darkened,  rendered  unwhole- 
some and  unfit  for  habitation. 

In  this  view  of  the  nature  of  the  action, 
the  first  question  to  be  determined  is,  were 
defendants'  lots,  on  the  south  boundary 
of  which  they  erected  this  fence,  servient 
lots?  In  other  words,  had  the  plaintiff 
anj-  right  to  the  passage  of  light  and 
air  laterally  over  defendants'  lots,  to 
plaintiffs  doors  and  windows,  and  to  an 
unobstructed  view  of  an  adjacent  street? 
If  he  had,  whence  does  he  derive  it? 
This  is  for  him  to  show,  and  he  has  not 
shown  it.  He  shows  no  right  by  prescrip- 
tion, by  use  for  20  years,  if  such  use  could 
be  available,  and  no  grant  from  any  one. 
The  owner  of  the  premises  erected  the 
flwelling-house  occupied  by  i)laintiff  with- 
in two  feet  of  the  south  line  of  defend- 
ants' premises.  We  have  been  referred  to 
no  law  forbidding  defendants  from   erect- 


ing a  fence  on  the  line  of  their  own  land. 
Admit  the  erection  does  darken  the  rocnns 
of  his  neighbor;  that  it  does  render  them 
close  and  uncomfortable,  and  annoj'  and 
incommode  him, — the  defendants  have  on- 
ly exercised  a  right  belonging  to  them  by 
building  the  fence.  This  is  not  a  case  of 
ancient  lights.  The  plaintiff  insists  it  is 
for  a  nuisance  arising  out  of  a  violation  of 
the  maxim,  sic  utere  tuo  vt  alicinnn  uon 
Isedas.  It  is  not  denied  that,  l)y  the  com- 
mon law,  an  action  on  the  case  lies  for 
a  nuisance  to  the  habitation  or  estate  of 
another,  many  instances  of  which  are 
readily  found  in  the  books;  and,  among 
the  manv  hundred,  one  is  now  before  us, 
in  10  Adol.  &  E.  590,  (Flight  v.  Thom- 
as,) and  is  germane  to  this  case.  That 
was  an  action  for  annoying  plaintiff 
in  the  enjo^'ment  of  his  house,  by  caus- 
ing offensive  smells  to  arise  near  to,  in, 
and  about  the  house.  The  defendant 
pleaded  the  enjoyment,  as  of  right,  for  20 
years  of  a  mixen  (compost  heap  or  dung- 
hill) on  his  land  contiguous  and  near  to 
plaintiff's  house,  whereby,  during  all  that 
time,  offensive  smells  necessarily  and  un- 
avoidably arose  from  the  said  mixen. 
This  plea  was  traversed,  and  there  was  a 
verdict  for  the  defendant.  In  the  king's 
bench  the  plea  was  held  bad,  and  the 
plaintiff  entitled  to  judgment,  as  it  did 
not  show  a  right  to  cause  offensive  smells 
in  the  plaintiffs  premises,  nor  that  any 
smells  had  in  fact  been  used  to  pass  be- 
yond the  limits  of  defendant's  own  house. 
The  law  unquestionably  is,  if  a  man  erect 
anything  offensive  so  near  the  house  of 
another  that  it  becomes  useless  thereby, 
case  lies;  as,  a  limekiln,  a  dye»house,  a 
tallow  furnace,  a  privy,  a  brew-house,  a 
tan-vat,  a  smelting-house,  and  the  like. 
But  i.t  does  not  lie  if  a  man  builds  a  house 
and  makes  cellars  on  his  soil,  whereby  a 
house  newly  built  on  the  adjoining  soil 
falls  down;  so,  if  by  such  building  he 
stops  lights  newly  made  in  the  house  of 
another,  though  the  lights  have  continued 
for  30  or  40  years.  In  all  the  cases  where 
it  was  held  the  action  would  lie,  a  positive 
right  was  invaded.  If  this  was  a  case  of 
ancient  lights,  the  maxim  would  apply. 
But,  plaintiff  having  established  no  right, 
he  cannot  claim  to  be  injured  or  damni- 
fied, as  no  right  is  infringed, — legally 
speaking,  there  is  no  injury  or  damage. 
The  defendants  cannot  be  charged  with  so 
using  their  own  property  as  to  injure  an- 
other. By  the  fence  the  plaintiff  has  been 
deprived  of  the  use  of  that  which  did  not 
belong  to  him,  for  light  and  air  are  not 
the  subjects  of  property  beyond  the  mo- 
ment of  actual  occupancy.  Mahan  v. 
Brown,  13  Wend.  261;  Parker  v.  Foote.  19 
Wend.  309. 

That  the  defendants  had  the  right  to 
build  a  fence  50  feet  high,  on  their  own 
land,  or  a  high  wall  which  should  have 
the  effect  to  deprive  plaintiff  of  light  and 
air,  and  obstruct  his  view,  the  plaintiff 
himself  showing  no  prescriptive  or  other 
adverse  right,  is  settled  by  authority. 
The  case  of  Gerber  v.  Grabel,  IG  111.  217,  is 
referred  to  on  this  question.  There  the 
declaration  did  not  prescribe  for  ancient 
lights,  but  declared  generally,  as  in  this 
case,  that   plaintiff  was  possessed   of  the 


GENERAL  PniXCirLES. 


3 


house,  and  ou{?ht  to  enjoy  a  right  to  the 
lif^ht  and  air  through  tiie  windows.  The 
court  heUl  the  dechiration  was  sufficient 
to  admit  proof  oi  the  right,  whetlier  it 
arises  upon  a  prescrii)tion,  by  contract, 
or  otherwise  by  estoppel.  Tlie  English 
doctrine  was  fully  examined  and  admitted 
by  one  of  the  judges,  Mr.  Justice  Scates 
delivering  the  opinion,  that  the  rule  in 
England  was  the  jjrosumptive  prescription 
of  JO  3'ears.  applied  in  analogy  to  the 
statute  of  linntatious.  But,  he  said,  such 
was  not  the  rule  of  the  common  law  of 
this  state;  and,  discussing  the  older  au- 
thorities, from  Rolle's  Abridgement, 
through  Coke,  down  to  Croke's  Eliz.,  to 
the  accession  of  James  I.,  the  learned  judge 
reached  the  conclusion  that  a  prescription 
of  20  3-ears  for  the  easement  of  light  and 
air  was  not  api)licable  to  the  circumstan- 
ces of  this  state,  unsettled  and  unim- 
proved as  it  is;  that  the  doctrine  cannot 
be  traced  further  back  than  the  twenty- 
first  year  of  James  I.  He  then  treats  of 
the  distinction  between  easements  which 
require  the  actual  use  of  the  propert^^  of 
another,  such  as  commons,  a  way,  etc., 
and  proceeds:  One  has  no  jjropertj- in  a 
pi'ospect,  nor  in  the  light  and  air  that 
pass  across  his  land.  He  may,  when  he 
pleases,  deprive  another  of  the  prospect; 
but  in  regard  to  easements  of  the  other 
de.scription,  suffering  the  use  of  it,  with 
a  knowledge  of  it  by  him  out  of  whose 
estate  it  is  claimed,  and  without  his  ex- 
press consent,  might  well  raise  a  presump- 
•  tion  of  a  grant  or  existing  right  from  si- 
lence and  inaction,  and  a  much  shorter 
period  would  be  satisfactory  and  subserve 
the  ends  of  justice.  "But,"  he  says,  after 
an  extended  argument  of  this  branch  of 
the  subject,  "  no  part  of  this  reasoning  will 
app'v  to  an  inc()r[)oreal  servitude  of  light 
and  air.  It  was  well  said  in  Bury  v.  Pope, 
Cro.  Eliz.  lis,  that  it  was  his'  folly  to 
build  his  house  and  put  his  windows  up- 
on another's  line,  and  30  or  40  years' use 
shall  not  debar  the  other  from  building 
on  his  line  adjoining.  This  folly  is  no  in- 
vasion of  or  injurj-  to  the  adjoining  pro- 
prietor's property  or  right,  while  his  prop- 
erty lies  vacant.  There  is  no  wrong  to 
complain  of,  or  injury  to  redress,  as  in 
the  class  of  easements  referred  to.  It 
cannot,  tlierefore,  become  an  easement  or 
servitude  upon  the  land,  until  it  begins  to 
operate  upon  the  owner's  right  of  ob- 
structing the  light  and  air."  He  then  asks 
this  question:  "  ^^'hen  does  this  servitude 
begin  ?  "  The  answer  is,  "  A  t  the  precise  pe- 
riod when  man's  memory  of  its  beginning 
is  lost."  "Such,"  he  insists,"  was  the  com- 
mon law  of  our  adopticju.  and  its  adapta- 
tion is  as  well  suited  in  all  things  to  us  as 
to  any  people  or  country."  As  we  under- 
stand this  opinion,  the  right  to  the  fre? 
passage  of  light  and  air  must  be  estab- 
lished for  a  length  of  time  whereof  the 
memory  of  man  runneth  not  to  the  con- 
trary,— that  is.  from  time  immemorial; 
and  this  was  the  common  law,  as  under- 
stood ijrior  to  the  accession  of  James  I. 
Another  distinguished  judge,  Mr.  Jus- 
tice Caton,  whose  ability  and  great  legal 
knowledge  have  never  been  questioned, 
understood  the  first  section  of  chapter  GL', 
Kev.    St  ,   adopted    the    common   law   of 


England  as  administered  in  Westminster 
Hall  at  the  time  the  prcjvision  was  origi- 
nally adopted  in  this  state,  and  the  Brit- 
ish statutes  in  aid  of  the  common  law 
prior  to  the  fourth  year  of  James  1.,  e.\- 
cej)t  as  provided  in  that  section;  and 
it  was  admitted  that,  by  the  well-settled 
rule  of  the  common  law,  as  it  has  h^en 
understood  and  administered  b\'  the  En- 
glish courts  for  many  years  past,  20  years' 
uninterrupted  and  unquestioned  enjoy- 
ment of  lights  constitutes  them  ancient 
lights,  in  the  enjoyment  of  which  the 
owner  shall  be  protected.  Treat,  C  J., 
dissented,  but  fih^d  no  opinion,  by  which 
dissent  we  infer  that  he  did  not  agree  with 
either  of  his  associates.  This  is  the  only 
case  in  this  court  wp  have  been  referred  to 
touching  this  subject,  and  from  it  it  will 
be  set'u  the  law  has  not  been  authorita- 
tivel3'  declared,  enough  only  appearing  in 
the  record  to  dispose  of  the  case  then 
pending. 

But  be  the  law  20  ysars,  ortime  imme- 
morial, in  which  to  prescribe,  it  cannot 
avail  the  plaintiff  in  this  action,  as  he 
established  neither.  The  declaration  in 
the  case  is  drawn  from  a  precedent  in  2 
Chitty  on  Pleading,  7G9,  with  some  slight 
variations,  which  is  there  prescribed  in 
an  action  on  the  case  for  obstructing  an- 
cient windows.  An  action  on  the  case  for 
a  nuisance  lies  not,  if  one  builds  a  house 
or  other  structure,  whereby  the  prospect 
of  another  is  interrupted.  Aldred's  Case, 
9  Coke,  .58.  It  does  not  lie  for  a  reasonable 
use  of  one's  right,  though  it  be  to  the  an- 
noyance of  another.  So  if,  bj'  such  build- 
ing, he  stops  lights  newly  made  in  the 
house  of  another,  though  the  lights  have 
continued  for  30  or  40  years.  Com.  Dig. 
420.  The  doctrine  of  the  common  law, 
as  found  in  Washbui-n  on  Easements  and 
Servitudes,  is  that  an  adjacent  owner 
ma3'  deprive  his  neighbor  of  the  light  com- 
ing laterally  over  his  land,  by  the  erection 
of  a  wall  on  his  own  land,  within  the 
period  of  prescription,  although  he  does  it 
for  the  mere  purpose  of  darkening  his 
neighbor's  windows.  Page  491.  In 
Chandler  v.  Thompson,  3  Camp.  82,  Le 
Blanc.  J.,  said,  although  an  action  for 
opening  a  window  to  disturb  the  plain- 
tiff's privacy  was  to  be  read  of  in  the 
books,  he  had  never  known  such  an  ac- 
tion to  be  maintained ;  and  he  had  heard 
it  said  by  Eyhk,  C.  J.,  that  such  an  action 
did  not  lie,  and  that  the  only  remedy  was 
to  build  on  tiio  adjoining  land  opposite 
the  offensive  window. 

The  comi)laint  in  this  declaration  is  for 
erecting  an  obstruction,  by  which  ligh 
and  air  were  prevented  from  coming  into 
plaintiff's  house,  rendering  the  rooms 
dark,  unwholesome,  and  uninhabitaole. 
The  point  is  that  defendants  had  a  right 
to  erect  the  fence,  which  was  the  obstruc- 
tion alleged.  The  plaintiff,  showing  no 
right  to  the  free  passage  of  light  and  air, 
must  submit  to  this  erection,  in  the  ab- 
sence of  anj-  allegation  that  the  fence  was 
made  of  unfit  materials,  the  odor  from 
which  was  of  a  noxious  nature,  which,  pene- 
trating the  house  of  plaintiff,  rendered  it 
unwholesome.  To  entitle  him  to  claim 
damages  for  the  erection  of  a  fence,  by 
which    his    dwelling   was    darkened    and 


LAW  OF  TORTS. 


made  unwholesome,  he  must  show  a  pre- 
scriptive right  to  the  use  of  the  light  and 
air,  which  he  does  not  pretend.  He  can- 
not make  one  case  in  his  declaration,  and 
another  and  different  case  by  his  proofs. 
He  declares  against  the  defendants  that 
he  is  possessed  of  a  dwelling-house,  with 
doors  and  windows,  to  and  through 
which  light  and  air  ought  to  come  freely, 
but  you,  the  defendants,  have  obstructed 
their  free  passage,  bj'  which  mj-  house  is 
darkened,  rendered  unwholesome,  and  un- 
fit for  habitation.  This  is  his  whole  case, 
as  he  states  it  in  the  declaration.  We 
submit,  it  is  not  competent  for  him  on 
the  trial,  to  prove  that  the  materials  out 
of  which  the  fence  was  made  were  filthy 
and  unfit,  or  that  they  created  an  atmos- 
phere in  the  house  which  was  noxious,  for 
that  is  an  independent  cause  of  action. 

Now,  on  the  question  of  prescription. 
As  it  is  an  open  question  in  this  court,  we 
are  inclined  to  adopt  the  views  held  and 
so  well  expressed  by  the  supreme  court  of 
the  state  of  New  York  in  Parker  v.  Foote, 
supra.  In  commenting  on  the  doctrine  as 
received  by  the  British  courts,  the  court 
say:  "The3^tell  us  a  man  maj' build  on 
the  extremity-  of  his  own  land,  and  that 
he  may  lawfully  have  windows  looking 
out  upon  the  land  of  his  neighbor.  "  The 
court  say  the  reason  why  he  may  lawfully 
have  such  windows  should  be  because  he 
does  his  neighbor  no  wrong ;  and  yet, 
somehow  or  other,  by  the  exercise  of  law- 
ful right  in  his  own  land  for  20  years,  he 
acquires  a  beneficial  interest  in  the  land  of 
his  neighbor.  The  original  proprietor  is 
still  seised  of  the  fee,  with  the  privilege  of 
paying  taxes  and  assessments;  but  the 
right  to  build  on  the  land,  without  which 
city  and  village  lots  are  of  little  or  no 
value,  has  been  destroyed  by  a  lawful 
window.  How  much  land  can  thus  be 
I'endered  useless  to  the  owner  remains  yet 
to  be  settled.  And  the  court  further  say 
thereis  no  principle  upon  which  the  modern 
English  doctrine  on  the  subject  of  lights 
can  be  supported.  It  is  an  anomaly'  in 
the  law.  It  may  do  well  enough  in  Eng- 
land, and  has  been  sanctioned,  with  some 
qualification,  by  act  of  parliament,  but  it 
cannot  be  applied  to  the  growing  cities 
and  villages  of  this  country  without 
working  the  most  mischievous  conse- 
quences, and  has  never  been  deemed  a  part 
of  our  law.  In  M3'ers  v.  Gemmel,  10  Barb. 
537,  this  ease  is  approved.  In  3  Kent, 
Comm.  573,  it  is  said  tiie  English  doctrine 
is  not  much  r<^lished  in  this  country,  ow- 
ing to  the  rapid  changes  and  improve- 
ments in  our  cities  and  villages.  A  pre- 
scriptive right, springingup  under  the  nar- 
row limitation  in  the  English  law,  to  pre- 
vent obstructions  to  window  lights  and 
views  and  prospects,  or,  on  the  other 
hand,  to  protect  a  house  or  garden  from 
being  looked  in  upon  by  a  neighbor, 
would  affect  essentially  the  value  of  va- 
cant lots,  or  of  lots  with  low  and  back 
buildings  upon  them.  To  the  same  effect 
is  Washburn  on  Easements  and  Servi- 
tudes, 497.  We  are  disposed  to  concur  in 
this  view,  and  to  hold  it  absurd  to  say 
that  a  man,  by  the  exercise  of  rights  over 
his  own  property  for  20  years,  can  there- 
by- acquire  a  title  in  the  property  of  an- 


other. Such  a  doctrine  is  not  applicable 
to  our  growing  cities  and  villnges,  and 
was  not  the  doctrine  of  the  common  law, 
as  expounded  in  Westminster  Hall  prior 
to  the  fourth  year  of  the  reign  of  James  I. 
These  views  render  it  unnecessary  to  con- 
sider the  instructions  given  in  this  case, 
as  it  is  readily  seen  some  of  them  were 
not  applicable.  As  we  understand  the 
declaration,  there  is  no  cause  of  action 
stated  in  it  to  entitle  the  plaintiff  to  a  re- 
covery, and  we  must  reverse  the  judgment. 
The  judgment  is  therefore  reversed,  and 
the  cause  remanded. 
Judgment  reversed 


(104  N.  Y.  471, 11  N.  E.  Rep.  57.) 

Miller  v.  Woodhead. 

{Court  of  Avpeals  of  New  York.    March  1, 1887.) 

Negligence  —  Dangerous  Premises  —  Landlord 
AND  Tenant. 

Rooms,  the  windows  of  which  overlooked  an  ex- 
tension of  the  same  house,  were  let  hy  the  owner 
of  the  whole  building  to  a  tenant,  with  the  right 
to  the  latter  to  use  the  roof  of  the  extension  for 
drying  clothes.  In  the  roof  near  the  windows 
was  a  sky-light,  covered  with  a  wire  screen  for 
the  protection  of  the  glass  in  it,  but  the  screen 
was  in  bad  condition,  and  was  afterwards  re- 
moved. Before  it  was  replaced,  pluintifE,  a  child 
about  three  years  of  age,  while  visiting  the  ten- 
ant, fell  out  of  the  window,  through  the  sky-light, 
and  was  injured.  Held,  that  the  owner  of  the 
house  was  not  liable  to  plaintiff  for  such  injuries; 
there  was  no  violation  of  any  duty  which  he  owed 
plaintiff;  and,  even  if  the  screen  was  necessary 
to  render  the  roof  fit  for  the  use  of  the  tenant, 
plaintiff  could  not  take  advantage  of  any  viola- 
tion of  the  owner's  duty  to  the  tenant  iu  that  re- 
spect, as  he  was  not,  at  the  time  of  the  accident, 
connected  in  any  way  with  the  tenant  in  the  use 
of  the  roof. 

Reversing  36  Hun,  643,  mem. 

Appeal  from  supreme  court,  general 
term,  first  department. 

Action  by  Samuel  L.  Miller,  an  infant, 
against  Richard  Woodhead,  to  recover 
damages  for  personal  injuries  to  plaintiff 
alleged  to  have  been  caused  by  defend- 
ant's negligence. 

Henry  P.  St^jrbuck,  for  appellant.  J. 
Gray  Boyd,  for  respondent. 

Peckham,  J.  The  defendant  was  the 
owner  of  a  house  in  Thirty-Third  street, 
New  York,  some  rooms  in  which  he  had 
rented  to  a  Mrs.  O'Brien,  who  was  the 
step-mother  of  the  plaintiff's  mother,  the 
plaintiff  being  an  infant  of  about  the  age 
of  three  years.  Mrs.  O'Brien  had  three 
rooms  in  the  rear  of  the  house,  overlook- 
ing an  extension  thereof,  which  was  cov- 
ered with  a  tin  roof,  and  in  which  there 
was  a  skj' -light  to  give  light  to  a  saloon 
situated  in  such  extension.  Mrs.  O'Brien 
had  leased  the  right  to  use  this  roof  for 
the  purpose  of  hanging  out  and  drying 
her  clothes,  and  when  she  rented  the 
rooms  the  defendant  had  cautioned  her 
about  not  letting  children  out  on  the  roof, 
because  the  ceiling  was  very  bad,  and  she 
had  never  allowed  them  to  go  tliere. 
This  tin  roof  w^as  about  a  foot  below  the 
windows  of  Mrs.  O'Brien's  rooms,  which 
looked  out  on  it.  About  16  or  18  inches 
from  the  wall  in  which  the  windows  T\"ere 
set  the  sky-light  in  question  was  situated, 
so  it  was  about  a  foot  below  the  win- 


GENERAL  PRINCIPLES. 


dows,  anfl  IG  inclies  away  from  the  wall. 
The  .sk.vlij;iit  had  panes  uf  ^las.s  in  it,  and 
there  had  been  a  wire  screen  over  the 
glass,  made  of  lonj?  and  small  wires, 
verj'  thin,  and  in  bad  condition, — old  and 
rotten.  This  screen  had  been  talcen  off 
the  sky-light  some  six  weeks  j)rior  to  the 
accident,  and,  at  the  time  of  its  occur- 
rence, had  not  been  replaced.  The  glass 
in  the  skj'-light  would  have  been  very 
likely  broken  if  not  covered,  as  the  boys 
used  to  climb  up  a  laddei"  and  play  ball 
about  there.  The  sill  of  the  windows  from 
the  tioor  inside  was  al)out  1'3  inches,  and, 
in  order  to  go  out  on  the  roof  from  the 
rooms  occupied  by  Mrs.  O'Brien,  it  was 
necessary  to  raise  the  window  and  crawl 
through  the  lower  part  of  it.  The  per- 
mission given  by  the  defendant  was  to 
Mrs.  O'Brien  to  go  out  on  the  roof  and 
dry  her  clothes  there.  There  were  no  bars 
on  the  window,  and  if  there  had  been  she 
says  she  would  not  have  taken  the  prem- 
ises. On  the  daj'  in  question  the  mother 
of  plaintiff,  with  a  babe  in  her  arms,  and 
accompanied  b3'  plaintiff,  called  at  Mrs. 
O'Brien's,  and,  as  they  went  in  the  room, 
plaintiff's  mother  started  to  i)ut  the  babe 
on  a  bed  in  the  bed -room  off  the  kitchen, 
and  was  gone  but  a  few  seconds,  when 
^Irs.  O'Brien  saw  the  plaintiff,  who  had 
gone  to  the  window,  tumbling  out.  She 
caught  sight  of  him  just  as  he  was  dis- 
appearing. He  fell  thrcmgh  the  sky -light, 
and  sustained  injuries  to  his  head,  etc., 
for  which  he  brought  this  action.  Mrs. 
O'Brien  gave  it  as  her  opinion  "that,  if 
the  wire  had  been  on.  it  had  been  all 
right  for  the  boy."  P>om  her  own  de- 
scription, it  is  perfectly  obvious  the  wire 
screen  was  not  placed  there  to  catch  peo- 
ple, oi'  prevent  their  falling  through  the 
sky-light,  but  for  the  i)urpose  of  saving 
the  glas.s  in  the  sky-light.  The  plaintiff  re- 
covered a  verdict,  which  has  been  affirmed 
at  the  general  term,  and  the  defendant  ap- 
peals here. 

Upon  the  case  as  made  by  the  plaintiff, 
we  are  unable  to  see  that  anj'  proof  was 
given  of  the  violation  of  any  duty  which 
the  defendant  owed  to  the  plaintiff.  The 
roof  over  the  saloon,  or  the  sky-light 
therein,  was  not  a  dangerous  structure, 
and  defendant  liad  given  no  invitation, 
and  issued  no  license,  expressed  or  im- 
plied, to  plaintiff  to  go  u))on  the  roof. 
Mrs.  O'Brien  had  the  right  to  go  on  it  for 
the  purpose  suggested,  and  very  likely  any 
agent  or  servant  of  hers  engaged  in  that 
occupation  for  her.  This  is  no  such  case. 
If  there  had  been  no  roof  at  this  place, 
the  i)laintiff  would,  on  falling  out  of  the 
window,  have  come  to  the  ground.  Can 
it  be  contended,  in  such  case,  the  defend- 
ant would  have  been  liable*?  If  not,  how 
is  his  liability  increased  by  the  fact  tliat 
there  is  a  roof  just  below  these  windows, 
but  in  it  there  is  a  sky-light  which  a  child's 
weight  could  break?  If  the  defendant 
owes  no  duty  in  the  one  case  to  build  a 
roof  or  a  wall  or  any  other  structure  un- 
der these  windows  to  catch  jieoplewho  fall 
out  of  them,  how  is  his  liability  increased 
when  he  does  build  a  structure  witn  a 
roof,  but  which  does  not  absolutely  pre- 
vent one  from  falling  through  it  because 
of  a  sky-light? 


I  But  the  liability  seems  to  have  been 
placed,  In  the  court  below,  upon  the  duty 
which  it  is  said  the  defendant  owed  Mrs. 
O'Biien  to  furnish  her  a  reasonably'  safe 
I  roof  when  he  let  her  the  right  to  go  upon 
Jit  to  dry  clothes.  If  that  be  assumed,  we 
do  not  see  how  plaintiff  is  aided.  Mrs. 
O'Brien  was  not  injured,  nor  any  of  her 
servants,  by  reason  of  the  unfitness  of  the 
roof  for  the  purpose  for  which  it  was  to 
be  used  b>^er  or  them.  The  plaintiff  was 
not  injured  while  he  was  using  the  roof  at 
all.  He  simply  fell  out  of  a  window,  (as 
the  evidence  shows  beyond  all  question,) 
and  thus  received  his  injury.  What  had 
the  liability  (^^hatever  it  was)  of  defend- 
ant to  Mrs.  O'Brien  to  do  with  this  ques- 
tion between  plaintiff  and  himself,  as  the 
pltiintiff  was  n(jt  using  the  roof  for  any 
purpose  whatever?  Conceding  that  to 
fulfill  his  oldigations  to  Mrs.  O'Brien,  and 
TO  render  the  roof  fit  for  her  to  use  for  the 
purpose  spoken  of,  this  wire  .screen  was  a 
necessity,  and  that  if  it  had  been  there  on 
this  occasion  the  plaintiff  would  not  have 
been  hurt,  still  there  was  no  duty  ow- 
ing by  him  to  this  plaintiff  to  have  the 
roof  in  that  condition,  so  that  he  could 
be  caught  when  he  fell  out  of  the  window, 
and  the  injury  thus  be  averted.  The  duty 
of  defendant  to  Mrs.  O'Brien,  in  order  to 
fulfill  his  contract  with  her  in  granting 
her  permission  to  use  the  roof,  is  one 
thing;  but  the  plaintiff  cannot  take  ad- 
vantage even  of  its  violation,  unless  at 
the  time  when  the  accident  happened  he 
was  himself  in  some  way  connected  with 
her,  as  in  the  performance  of  the  duty  for 
her,  or  in  using  the  roof  with  her  license, 
(even  if  that  would  raise  a  duty,)  and  in 
carrying  out  some  right  which  she  had 
herself.  This  case  has  none  of  these  feat- 
ures. The  duty  of  defendant  may  be  one 
thing  to  Mrs.  O'Brien  and  quite  another 
to  the  plaintiff.  Larmore  v.  Iron  Co.,  101 
N.  Y.  391,  4  N.  E.  Rep.  75:.'.  We  think  this 
case  not  distinguishable  in  principle  from 
McAlpin  V.  Powell,  70  N.  Y.  126.  The 
judgment  of  the  general  term  and  of  the 
circuit  should  be  reversed,  and  a  new  trial 
ordered,  costs  to  abide  event.     All  concur. 


(86  Pa.  St.  74.) 

Gramlich  V.  WuBST  et  al. 

(Supreme  Court  of  Pennsylvania.   Jan.  28, 1878. ) 

Negligexce  —  Daxgekods  Premises  —  Ixjurt  to 
Trespasser. 
A  lawful  occupant  of  land  at  a  distance  from 
any  public  highway,  who  makes  an  excavation 
thereon  for  a  lawful  purpose  and  in  the  accus- 
tomed manner,  is  not  liable  for  injuries  received 
by  a  trespasser  from  falling  into  the  excavation. 
In  the  absence  of  exceptional  hazards,  he  is  not 
required  to  provide  exceptional  safeguards.  Hy- 
draulic Works  Co.  V.  Orr,  63  Pa.  St.  332,  distin- 
guished. 

Err(»r  to  court  of  common  pleas,  Phila- 
delphia county. 

Action  on  the  case  by  Mary  Worst  and 
others,  the  widow  and  infant  children  of 
John  A.  Wurst,  deceased,  against  Freder- 
ick Gramlich,  for  daniages  for  the  death 
of  said  John  A.  Wurst,  alleged  to  have 
been  caused  by  defendant's  negligence. 

At  the  trial  defendant  submitted  several 
points,  among  them    the  following:   '' Ci) 


LAW  OF  TORTS. 


The  place  of  this  excavation  being  on  pri- 
vate property,  and  not  on  any  line  of 
street  or  public  highway,  but  some  dis- 
tance therefrom,  the  said  decedent,  not  be- 
ing engaged  in  any  manner  whatever  by 
the  said  defendant  or  bis  agents,  had  no 
right  to  be  there,  and  was  a  trespasser, 
and  the  verdict  should  have  been  for  the 
defendant."'  The  judge  presiding  at  the 
trial  refused  this  point,  and  instructed,  in 
part, the  jury  as  follows:  "Now, as  to  the 
defense,  it  is  contended  by  defendant: 
First.  That  thereis  no  direct  evidence  how 
the  accident  happened,  and  therefore  no 
sufficient  evidence  of  defendant's  negli- 
gence. In  support  of  this  view,  defend- 
ant's counsel  has  callpd  your  attention 
to  the  fact  that  Wurst,  when  be  fell  in, 
was  not  on  his  route  home  from  the  place 
where  he  was  last  seen  at  work.  His 
home  was  in  another  direction.  Further, 
he  was  a  trespasser  on  the  lot  where  the 
excavation  was,  and  had  no  legal  right 
to  be  there  at  all.  1  instruct  you  that 
those  facts  do  not  absolutely  prevent  a 
recovery  by  the  plaintiffs.  A  man  is 
bound  to  exercise  reasonable  care  even 
towards  a  trespasser.  But  these  facts 
bear  very  strongly  on  the  question  of  what 
was  reasonable  care  on  the  part  of  defend- 
ant under  the  circumstances, — in  other 
words,  of  his  negligence;  and  also  of  the 
negligence  of  the  deceased.  A  trespasser 
is  bound  to  proceed  with  more  care  than 
where  he  has  a  right,  and,  on  the  other 
liand,  the  defendant  was  not,  in  ordinary 
circumstances,  bound  to  anticipate  a  tres- 
pass. Secondly.  Has  the  plaintiff  proved 
to  your  satisfaction  that,  under  all  the 
circumstances  of  the  case,  the  defendant 
was  guilty  of  negligence?"  And  after  re- 
viewing the  evidence  the  judge  continued  : 
"Now,  3-0U  are  to  judge  from  all  this  evi- 
dence whetherthedefendant  was  negligent 
in  leaving  his  excavation  without  lights 
and  without  a  fence,  under  the  special  cir- 
cumstances of  that  night.  There  had  been 
a  serious  accident,  resulting  in  loss  of  life, 
and  there  was,  according  to  all  the  testi- 
mony, a  crowd  of  people  about  the  place 
all  the  afternoon.  This  in  itself  would 
impose  on  the  defendant  more  care  in  re- 
gard to  his  excavation  than  under  ordi- 
nary circumstances.  It  increased  the  dan- 
ger of  injury  to  trespassers,  as  to  whom, 
as  I  have  already  said,  thedefendant  owed 
the  dutj'  of  a  reasonable  care;  not  such 
degree  of  care  as  required  as  to  people 
who  should  be  habitually  and  lawfully 
there,  but  such  as,  under  all  circumstan- 
ces, was  reasonable  to  require,  even  as  to 
others.  In  judging  of  this  care,  however, 
the  defendant  is  entitled  to  have  you  con- 
sider the  facts  that  this  was  an  extraor- 
dinary occurrence,  such  as  he  was  not 
bound  to  and  in  fact  could  not  anticipate; 
that  the  street  w^as  not  o]jened  through 
for  public  travel ;  thatthe  ground  between 
the  fallen  ice-house  and  the  edge  of  this  ex- 
cavation was  not  only  steep  and  up-hill, 
but  was  also  incumbered  with  piles  of 
lumber  and  the  debris  of  the  fallen  ice- 
house, so  as  to  make  it  unlikely  that  any 
one  would  clamber  over  them  from  that 
direction;  and.  in  general,  the  want  of 
probability  that  any  person  w(juld  be  in- 
jured by  failing  into  his  excavation.    Last- 


ly. You  will  consider  the  question  whether 
the  deceased  was  negligent  in  going  to- 
wards the  cellar  on  a  dark  and  rainy 
night,"  etc.  The  judge  then  stated  the 
law  as  to  contributory  negligence,  and, 
calling  the  attention  of  the  j  ury  to  the  care 
incumbent  on  deceased  under  the  circum- 
stances, instructed  them  thatcontributory 
negligence  on  his  part  would  bar  a  recov- 
ery. The  jury  found  a  verdictfor  plaintiffs 
for  $4,000.  Plaintiff  subsequently  filed  a 
remittitur  of  $1,000  of  that  amount.  De- 
fendant sued  out  a  writ  of  error,  and  as- 
signed as  error  the  refusal  of  the  judge  to 
affirm  the  point  mentioned. 

Argued  before  Agnew,  C.  J.,  and  Shars- 
woon,  Mekcur,  Gordon,  Paxsox,  Wood- 
ward, and  Trijnkey,  JJ. 

George  \V.  Bed  rick  and  David  W.  Sellers, 
for  plaintiff  in  error. 

Deceased  was  in  defendant's  close  with- 
out right  or  permission.  An  owner  of  pri- 
vate property  owes  no  dutj'to  a  trespass- 
er. Injury  to  trespassers  is  without  rem- 
edy, because  property  is  not  owned  or 
used  with  any  contemplation  of  them. 
Railroad  Co.  v.  Hummell,  44  Pa.  St.  375; 
Mulherrin  v.  Railroad  Co.,  SI  Pa.  St.  375.  In 
Allen  V.  Willard,  57  Pa.  St.  374,  the  person 
injured  was  traversing  the  highway  ad- 
joining which  was  the  excavation. 

Walter  J.  Budd  and  John  B.  Devine,  for 
defendants  in  error,  relied  on  Hvdraulic 
Works  Co.  V.  Orr,  83  Pa.  St.  332;  Railroad 
Co.  V.  Hummell,  44  Pa.  St.  375. 

Woodward,  J.  John  Adam  Wurst  was 
killed  by  falling  into  a  vault  which  Fred- 
erick Gramlich,  the  defendant  below,  was 
employed  in  excavating  on  a  lot  belonging 
to  Adam  Miller,  on  the  east  side  of  Thir- 
ty-First street,  above  Jefferson.  The 
work  was  done  under  a  contract  between 
Gramlich  and  Miller,  and  for  the  purposes 
of  the  contract  Gramlich  had  exclusive 
possession  of  the  lot.  Another  person  had 
fallen  into  the  vault,  and,  in  approaching 
to  aid  him  in  response  to  his  cries  for  help, 
it  is  probable  that  Wurst  met  with  the 
accident  that  caused  his  death.  In  falling, 
his  head  struck  the  shaft  of  a  cart  that 
w'as  in  use  in  doing  the  work,  and  which 
had  been  left  overnight  in  the  excavation. 
It  was  after  dark,  on  the  evening  of  the 
13th  of  February,  1S74,  that  the  accident 
happened.  On  the  morning  of  that  day 
the  roof  of  an  ice-house  on  a  lot  of  Henry 
Miller,  intervening  bet^\'een  Adam  Miller's 
land  and  Jefferson  street,  had  broken 
down,  and  Wurst,  who  was  a  carpenter, 
had  been  at  work  on  that  building  during 
the  whole  of  the  afternoon.  Michael  Gos- 
sey,  one  of  the  witnesses  for  the  plaintiffs, 
SHid  he  saw  him  about  half  past  3  o'clock 
on  the  top  of  the  biewery  getting  wood 
down,  and  Henry  Miller  said:  "Wurst 
was  there  before  I  was,  clearing  off  the 
roof.  It  was  a  little  after  12  o'clock  when 
I  arrived  there.  As  long  as  I  stood  there 
he  was  working  there.  He  was  thereun- 
til after  seven  o'clock.  He  was  hauling 
away  timber.  It  was  hauled  to  the  north 
side,  between  my  brewery  and  the  vault 
Mr.  Gramlich  was  digging."  There  was 
an  open  space  between  Henry  Miller's 
building  and  Adam  Miller's  line,  and  from 
the  account  which  the   plaintiffs  gave   of 


GENERAL  PKINCIPLES. 


Wnrst's  employment  during  the  day  the 
fact  that  the  excavation  was  being  made 
must  have  been  known  toliim,  and  the  situ- 
ation of  the  vault  when  the  work  ceased 
that  evening  must  have  been  within  his 
view.  When  he  fell  he  was  i)a8sing  from 
the  land  of  Henry  Miller  near  the  rear 
of  Adam  Miller's  Ijt,  and  perhaps  80  feet 
eastwardly  from  the  Thirty  First  street 
front. 

Under  these  facts,— and  all  of  them  that 
are  material  are  gathered  from  the  testi- 
mony on  behalf  of  the  plaintiffs,— what  du- 
ty did  Ciramlich  owe  to  Wurst?  The  con- 
tract for  digging  the  vault  was  a  perfect- 
ly lawful  one,  and  it  has  not  been  alleged 
that  the  work  was  done  otherwise  than 
in  the  accustomed  way.  It  was  all  done 
witliin  Adam  Miller's  lines.  No  adjacent 
land  was  encroached  upon,  and  no  dan- 
ger to  passengers  on  any  highway-  was 
created.  Indeed,  there  was  no  higiiway 
to  be  involved  in  danger.  Thirty-First 
street,  north  of  Jefferson,  had  only  been 
opened  along  the  propertj'  of  Henry  Mil- 
ler, and  the  surface  of  Adam  Miller's  lot  at 
the  line  of  the  street  was  from  10  to  15 
feet  above  its  established  grade.  There 
was  some  couflictiag  testimony  as  to 
paths  alleged  to  have  traversed  the  lot, 
but,  if  there  were  such  paths,  they  extend- 
ed eastwardly  or  north-eastwardly  in  the 
direction  of  a  lampblack  factory,  and  it 
was  not  contested  that  Wurst  fell  into  the 
vault  as  he  approached  it  from  the  south- 
ern side.  The  existence  or  non-existence 
of  paths  across  the  property'  was  imma- 
terial. In  the  ordinary  case,  a  jury  must 
pass  upon  evidence  given  in  support  of  a 
charge  of  negligence.  They  must  do  this 
alwaj's  when  the  measure  of  dutj'  is  ordi- 
nary and  reasonable  care,  and  the  stand- 
ard of  the  degree  of  care  shifts  with  the 
change  of  circumstances.  And  they  must 
do  it  also  where  essential  facts  arecontro- 
verted.  But  whers  there  is  no  conflict  of 
testiirouy,  and  either  the  standard  of  indi- 
vidual duty  hasbeenjudiciallj' determined, 
or  the  rights  of  owners  of  propertj^  have 
been  judicially  defined,  the  decision  of  a 
question  of  negligence  affecting  individual 
action  in  the  one  case,  or  the  exercise  of 
dominion  over  property  in  the  other,  be- 
comes the  duty  of  a  court.  Negligence  is 
to  be  found  upon  evidence,  and  is  not  to 
be  presumed  from  the  bare  fact  of  the  oc- 
currence of  an  accident  on  a  defendant's 
land.  Gramlich  was  in  the  lawful  occu- 
pancy of  the  lot  on  which  "Wurst  was 
killed,  and  was  engaged  in  anemploj-ment 
that  was  entirely  legitimate.  In  the  ab- 
sence of  evidence  to  show  the  existence  of 
exceptional  hazarrls,  he  was  not  required 
to  provide  exceptional  safeguards.  An 
owner  of  land  niciy  improve  it  in  his  own 
time  and  in  his  own  waj',  so  that  he  vio- 
lates no  duty  that  he  owes  to  any  adja- 
cent owner  or  to  the  public.  A  case  as 
old  us  Blyth  v.  Topham.  Cro.  Jac.l.jS,  Iield 
thar  "an  action  doth  not  lie  if  a  man 
makes  a  ditch  in  his  own  waste,  which  lies 
near  the  highway,  intcj  which  the  horse 
of  another  fjills ;  for  the  ditch  in  his  own] 
soil  was  no  wrong  to  the  other,  but  it 
was  his  fault  that  his  horse  escaped  into 
the  waste."  Where  A.,  who  was  the 
owner  of  a  store-house  and  lot,  left  at  the  ; 


rear  of  the  store-house  an  excavation 
walled  up  to  give  light  to  the  cellar,  and 
B.,  who,  on  an  alarm  of  fire,  went  down 
to  the  store-house,  adjoining  the  house 
in  which  the  fire  was.  and,  entering  at  the 
front  door,  went  through  the  store,  and, 
going  through  the  back  door,  turned  off 
the  gangway  across  the  opening,  and  fell 
in  and  was  injured,  it  was  held  that  the 
digging  of  an  open  space  in  the  rear  of  the 
store-house  by  A.,  upon  his  own  ground, 
was  a  lawful  act  by  him,  and  he  had  the 
right  to  keep  it  there  as  an  ajjpurtenant 
right  for  the  use  of  his  property;  and  B. 
falling  in  by  accident,  the  same  not  being 
near  a  public  street  or  crossing,  gave  no 
right  to  recover  damages  from  A.  as  a 
wrong-doer,  and  B.  going  there  on  ac- 
count of  the  fire  did  not  change  the  rule. 
Kohn  V.  Lovett,  44  Ga.  251.  The  law  fully 
recognizes  the  right  of  him  who,  having 
the  dominion  of  the  soil,  without  malice 
does  a  lawful  act  on  his  own  premises, 
and  leaves  theconsequencesof  an  act  there- 
by happening  where  they  belong, — upon 
him  who  has  wandered  out  of  his  waj', 
though  he  may  have  been  guilty  of  no 
negligence,  in  the  ordinary  acceptation  of 
the  term.  It  is  purely  damnum  absque 
injuria.  Morgan  v.  City  of  Hallowell,  57 
Me.  377.  "AVhen  an  excavation  is  made 
adjoining  to  a  public  way,  so  that  a  per- 
son walking  on  it  might,  by  making  a  false 
step,  or  being  affected  with  sudden  giddi- 
ness, fall  into  it,  it  is  reasonable  that  the 
person  making  such  excavation  should 
be  liable  for  the  consequences.  But  when 
the  excavation  is  made  at  some  distance 
from  the  way,  and  the  person  falling  into 
it  would  be  a  trespasser  upon  the  defend- 
ant's land  before  he  reached  it.  the  case 
seems  to  me  to  be  different."  Martin,  B., 
in  Hardcastle  v.  Railway  Co.,  4  Hurl.  & 
N.  67.  So  where  the  defendants  were  own- 
ers of  waste  land  which  was  bounded  bj' 
two  highways,  and  they  worked  a  quarry 
in  the  waste,  and  the  plaintiff,  not  know- 
ing of  the  quarrj',  passeil  over  the  waste 
in  the  dark  and  fell  intcj  the  quarry  and 
broke  his  leg,  and  then  brought  an  action 
for  the  injurj',  it  was  held  that  the  action 
could  not  be  maintained,  as  there  was  no 
legal  obligation  on  the  defendants  to  fence 
the  quarry  for  the  benefit  of  the  plaintiff, 
who  was  a  mere  trespasser  on  the  land. 
Hounsell  v.  Smyth,  7  C.  B.  (N.  S.)  7H1. 
This  rule  Avas  laid  down  bv  Chief  Justice 
Gibson  in  Knight  v.  Abert,  6  Pa.  St.  472, 
which  decided  that,  though  no  action  lies 
in  Pennsylvania  for  trespass  by  cattle 
pasturing  on  uninclosed  woodland,  yet 
that,  not  being  a  matter  of  right,  the  own- 
er of  the  land  is  not  liable  for  injuries  sus- 
tained by  such  cattle  falling  into  a  hole 
dug  by  him  within  the  boundaries  of  his 
land,  and  left  uninclosed.  And  the  opin- 
ions of  Mr.  Justice  Strong  in  Railroad  Co. 
V.  Hummell,44  Pa.  St.  37S,  and  of  Mr.  Jus- 
tice Sh.\hswood  in  Gillis  v.  Railroad  Co., 
59  Pa.  St.  129.  illustrated  and  enforced  sub^ 
stantially  the  same  rule. 

Reliance  has  been  placed  on  the  case  of 
Hydraulic  Works  Co.  v.  Urr.  8:^  Pa.  St.  332, 
to  support  this  judgment.  The  distinction 
between  that  case  and  this  is  marked  and 
obvious.  There  the  accident  happened  in 
a   private   passage  or  cartway  adjoining 


8 


LAW  OF  TORTS. 


a  factory,  where  several  kinds  of  business 
were  carried  on  in  different  stores,  and 
was  caused  by  the  falling  of  a  heavy  plat- 
form employed  as  an  inclined  plane  to 
move  heavy  ai-ticles  into  and  out  of  the 
building.  When  used,  it  was  lowered  so  as 
to  cover  the  pavement  of  the  cartway. 
When  not  in  use,  it  was  raised  on  hinges 
that  connected  one  side  of  it  within  18 
Inches  of  the  wall,  was  not  fastened  at  the 
upper  side,  and  was  so  nearl3'^  at  equipoise 
that  slight  force  only  was  required  to 
draw  it  down.  The  cartway  opened  from 
a  public  street,  where  people  were  con- 
stantly passing  and  children  were  often  at 
play.  There  was  a  gate  at  the  street  end, 
and  this  was  frequently  left  open.  It 
was  so  left  at  the  tiuie  of  the  accident, 
when  four  children  intruded  into  the  cart- 
way, and  their  thoughtless  tampering 
with  the  platform  resulted  in  drawing  it 
down  upon  themselves,  and  in  prijducing 
injury  to  the  child  of  the  plaintiffs  from 
which  he  died.  This  court  affirmed  a  ver- 
dict and  judgment  for  damages  in  the  com- 
mon pleas.  No  cause  was  ever  more  just- 
ly decided.  It  was  the  case  suggested  by 
Baron  Maktix  in  Hardcastle  v.  Railway 
Co.,  of  a  dangerous  appliance  adjoining  a 
public  way.  The  children  were  trespass- 
ers certainly,  but  then  they  wei"e  children, 
and  the  defendants  were  bound  to  have 
regard  to  the  reckless  and  thoughtless 
tastes  and  traits  of  childhood.  The  en- 
trance to    the  cartway  was  open  and    un- 


showed  the  strong  probability  of  danger 
from  the  structure,  it  had  once  fallen 
against  the  wheels  of  a  wagon,  and  when 
other  wagons  passed  it  was  held  up  by 
hand.  Evtn  a  trespasser  may  have  re- 
dress for  negligent  injuries  inflicted  on 
him.  Though  he  is  liable  to  an  action  for 
his  own  wrong,  he  does  not  necessaiily 
forfeit  his  right  of  action  for  injuries  he 
has  sustained,  as,  for  example,  by  falling 
into  a  hole  newly  excavated  on  a  defend- 
ant's premises  adjoining  a  public  way,  and 
rendering  it  unsafe  to  persons  lawfully 
using  the  same  with  ordinary  care. 
Barnes  v.  Ward,  9  C.  B.  892, 420.  The  own- 
er of  open  land  has  no  right  to  plant  in  it 
spring-guns  by  wliich  ordinary  ti-espassers 
may  be  wounded.  State  v.  Moore,  31 
Conn.  479.  In  this  country,  while  a  house 
may  be  thus  protected  from  burglars,  no 
man  has  a  right  to  place  on  his  land  any 
instruments  to  injure  persons  merely 
straying  on  such  land.  Johnson  v.  Pat- 
terson, 14  Conn.  1.  A  party  may  be  acting 
in  violation  of  some  particular  statute, 
and  still  be  under  the  general  protection 
of  the  law.  Spofford  v.  Harlow,  3  Allen, 
176.  Hydraulic  Works  Co.v.  Orr  rested  on 
principles  and  precedents  that  sustained 
it  amply,  but  which  have  no  application 
here.  The  undisputed  facts  proved  the 
defendant  to  have  been  guiltless  of  all 
wrong,  and  the  pi'ayer  for  instruction  to 
the  jury  that  he  was  entitled  to  a  verdict 
should  have  been  granted. 
Judgment  reversed. 


guarded,    and    the   facts    in    the    record 

(See  also,  Railroad  Co.  v.  Schwincllin?,  101  Pa.  St.  258:  Gillespie  v.  McGowan,  100  Pa.  St.  144; 
Galligan  v.  Manufacturing  Co.,  liS  Mass.  527,  10  N.  E.  Rep.  171.) 


The  violation  of  a  moral  right  or  duty,  unless  it  also  amounts  to  a 
legal  right  or  duty,  does  not  constitute  a  tort. 


(11  Pick.  526.) 

Lamb  v.  Stone. 

{Supreme  Judicial  Court  of  Massachusetts. 
Oct.  Term,  1S31.) 

Fraud  —  Purchase  of  Property  from  Abscond- 
ing Debtor. 
A  creditor  cannot  maintain  an  action  for  fraud 
against  one  who  has  fraudulently  purchased  from 
the  debtor  property  of  the  latter  subject  to  at- 
tachment, and  aided  him  to  abscond,  thereby 
preventing  the  creditor  from  arresting  the  debtor 
or  attaching  his  property,  or  otherwise  obtaining 
satisfaction  of  the  debt;  the  creditor  having  had 
no  lien  or  claim  upon  or  interest  in  the  property  so 
purchased.  Adams  v.  Paige,  7  Pick.  543;  Yates  v. 
Joyce,  11  Johns.  ISti;  Smith  v.  Tonstall,  Garth.  3, 
distinguished. 

Motion  in  arrest  of  judgment. 

Action  on  the  case  by  Joseph  Lamb 
against  Richard  Stone.  The  declaration 
contained  five  counts,  of  which  the  fourth 
alleged  that  one  Thompson,  at  a  place 
and  on  a  date  stated,  was  justl^^  indebted 
to  the  plaintiff  in  the  sum  of  .f.j().lo,  and 
was  possessed  of  certain  property,  to-wit, 
etc.,  of  great  value,  to-wit,  $250;  and  the 
defendant,  well  knowing  the  pi'emises, 
and  fraudulently  contriving  to  deprive  the 
plaintiff  of  the  means  of  obtaining  payment 
of  his  debt,  and  in  order  to  aid  and  abet 
Thompson  in  his  designs  to  evade  payment 


of  it,  and  thereby  prevent  the  plaintiff  from 
collecting  and  recovering  it  of  Thompson, 
which  he  was  about  to  do  by  due  process 
of  law,  did  fraudulently  and  wrongfully, 
and  with  an  intent  the  plaintiff  thereby 
to  defraud  and  injure,  take  and  receive  the 
property  from  Thompson,  and  convert 
it  to  his  (the  defendant's)  own  use,  and 
thereby  prevented  the  plaintiff  from  col- 
lecting his  debt  by  attaching  and  selling 
the  property  by  due  process  of  law,  as 
he  might  and  would  otherwise  have  done; 
whereby  the  plaintiff  has  been  ever  since 
prevented  from  recovering  his  debt  of 
Thompson,  and  wholly  deprived  of  the 
benefit  of  the  same,  and  the  same  is  still 
due  and  unpaid.  The  fifth  count  alleges 
that  whereas,  Thompson,  at  the  same 
place  and  on  the  same  date,  was  indebted 
to  the  plaintiff  in  the  sum  of  $56,  and  was 
fraudulently  and  wrongfully  contriving 
and  intending  to  prevent  the  plaintiff  from 
recovering  the  same  of  Thompson  b^-  put- 
ting out  of  his  possession  the  property 
and  estate  of  which  he  was  possessed,  so 
tliat  the  same  could  not  be  come  at  to  be 
attached  by  due  process  of  law,  and  a  void- 
ing the  process  of  law  provided  for  the 
collection  of  debts,  by  going  out  of  the 
commonwealth  and  the  reach  of  said 
process, — of  all    which  the  defendant  was 


GENERAL  PRINCIPLES. 


then  and  there  well  knowing, — he,  the  de- 
fendant, did,  in  order  to  aid  and  abet 
Thompson  in  his  wrongful  and  fraudulent 
intent,  and  with  the  intent  to  injure  and 
defraud  the  plaintiff  of  his  demand  against 
Thompson,  take  into  his  possession,  pur- 
chase, and  receive,  the  property  and  es- 
tate of  Thompson,  then  and  there  being 
found,  of  great  vtilue,  to-wit,§i'50,  and  did 
fraudulently,  and  with  the  intent  to  de- 
prive the  i)laintiff  of  the  means  of  recov- 
ering his  debt  of  Thompson,  aid,  abet,  and 
assist  Thompson  to  avoid  tlie  process  of 
law  provided  for  the  collecti(;n  of  debts, 
1)3' departing  out  of  the  commonwealth, 
which  Thomijscm  did,  and  has  ever  since 
remained  without  the  reach  and  effect  of 
the  legal  process  of  the  commonwealth, 
in  foreign  parts,  to-wit,  in  the  state  of 
Vermont,  wherel»y  the  plaintiff  was  de- 
prived of  the  means  of  collecting  his  debt. 
as  he  might  and  would  otherwise  have 
done,  and  was  about  to  do,  by  attaching 
the  property  or  arresting  the  body  of 
Thompson  bj'  due  process  of  law;  and 
has  ever  since  been  deprived  of  his  debt, 
and  all  means  of  collecting  the  same  or  en- 
forcing paj'ment  thereof,  and  has  wholly 
lost  the  same,  and  has  been  otherwise 
greatly  injured  by  the  fraudulent  doings 
of  the  defendant  as  aforesaid.  The  defense 
was  the  general  issue.  At  the  trial  the 
jury  found  a  general  verdict  for  plaintiff. 
Defendant  moved  in  arrest  of  judgment, 
on  the  ground  that  the  declaration  set 
forth  no  sufticient  cause  of  action. 

C.  Allen  and  Mr.  Burton,  for  the  motion. 
Newton  &  Wash  burn,  opposed. 

MoKTON.  J.  This  case  comes  before  us 
on  a  motion  in  arrest  of  judgment.  The 
verdict  oi  the  jury  establishes  everj^  ma- 
terial allegation  in  tlie  plaintiff's  declara- 
tion; andevcry  fact  substantially  set  forth 
is  to  be  taken  to  be  true.  The  question 
for  our  decision  is  whether  these  facts  are 
sufficient  to  entitle  the  plaintiff  to  judg- 
ment. Although  the  verdict  is  general, 
yet  in  this  case,  if  either  count  is  good,  the 
verdict  may  be  applied  to  that  count,  and 
judgment  be  rendered  upon  it.  The  fol- 
lowing are  all  the  material  allegations 
contained  in  either  of  the  counts:  That 
the  plaintiff  had  a  just  debt  due  him  from 
one  T  iom[)soii;  that  the  latter  had  prop- 
erty liable  to  attachment  sufficient  to  pay 
this  debt;  that  the  defendant  took  a  fraud 
ulent  conveyance  of  this  property"  that 
Tiiompson  has  absconded  from  the  state; 
that  the  plaintiff  has  not  been  al)le  to  ar- 
rest him,  to  attach  his  property,  or  oth- 
erwise to  (jbtain  satisfacticjn  of  his  debt; 
and  that  the  acts  done  b3-  the  defendant 
were  done  with  intent  to  defraud  the 
plaintiff,  by  preventing  him  from  securing 
or  getting  satisfaction  of  his  debt.  Some 
of  these  are  omitted  in  several  of  the 
counts,  but  no  one  contains  an.v  other  ma- 
terial allegation.  Will  these  facts  support 
an  action  ? 

Befcjre  proceeding  to  the  investigation 
of  the  main  question,  it  may  be  proper  to 
remark  that  the  declaration  contains  no 
averment  that  Thompson  is  insolvent,  or 
that  he  has  not,  where  he  now  resides, 
l)roperty  liable  to  be  taken  sufticient  to 
satisfy  the  debt,  or  that  any  suit  has  ever 


been  commenced  against  him,  or  anj'  at- 
tempt made  to  arrest  his  bod^'  or  attach 
his  propert3' ;  nor  is  it  alleged,  except  by 
implication,  that  he  has  not  in  this  state 
real  estate  or  personal  propert3',  other 
than  that  transferred  to  the  defendant, 
liable  to  attachment.  It  ought  also  to- 
be  further  remarked  that  this  is  not  an  ac- 
tion of  conspiracy  or  of  case  in  the  nature 
of  conspirac3'.  It  is  not  founded  upon 
any  illegal  combination  or  confederacy. 
The  declaration  does  not  set  forth  any 
conspirac3'  to  defraud  the  plaintiff  or  to 
evade  or  defeat  an3'  legal  process.  Na 
such  fact  can  be  presumed  to  exist,  and 
therefore  we  have  no  occasion  to  deter- 
mine what  effect  such  an  averment  would 
have.  It  will,  however,  be  perceived  that 
some  of  our  reasoning  wcnild  app^v  ta 
such  an  action  as  well  as  the  one  before 
us. 

This  is  a  special  action  on  the  case,  de- 
pending upon  the  precise  facts  set  forth  in 
the  declaration.  It  is  an  action  of  new 
impression.  It  is  admitted  that  no  prec- 
edent can  be  found  for  it.  This  circum- 
stance of  itself  forms  a  pretty  strong  ob- 
jection. It  ought,  however,  to  have  less 
weight  in  this  than  ciny  other  form  of  ac- 
tion. In  the  diversified  transactions  of 
civilized  life,  new  combinations  of  circum- 
stances will  sometimes  arise  which  will 
require,  in  the  application  of  well-settled 
principles  of  law,  new  forms  of  declara- 
tions. Among  the  old  and  wise  axioma 
of  the  law,  none  are  more  sound  than 
those  upon  which  the  plaintiff  attempts 
to  found  this  action.  In  law,  for  every 
wrong  there  is  a  remod3'.  3  Bl.  Comm. 
li'3;  Ash  by  v.  White,  1  Salk.  21.  Whenever 
the  law  creates  or  recognizes  a  private 
right,  it  also  gives  a  remedy  for  a  viola- 
tion of  it.  1  Chit.  PI.  S3;  Yates  v.  Joyce, 
11  Johns.  140.  The  general  principle,  that 
whenever  there  is  fraud  or  deceit  bx'  the 
one  party  and  injur3'  to  the  other,  or'jti//7- 
num  cum  injuria,  there  an  action  will 
lie,  is  ver3'  often  referred  to  with  appro- 
bation, and  alwa3'S  recognized  as  gt)od 
law.  Upton  V.  Vail,  6  Johns.  ISH;  Pasley 
v.  Freeman,  3  Term.  R.  51;  Eyre  v.  Duns- 
ford,  1  East,  329.  But  these  principles, 
however  sound,  must  be  understood  with 
such  qualifications  and  limitations  as 
other  principles  of  law  equall3  sound  nec- 
essaril\'  impose  upon  them.  It  is  very 
clear  that  there  ma3'  be  many  moi-al 
wrongs  for  which  there  can  be  no  legal 
remed3'.  And  there  ma3'  be  legal  torts  in 
which  the  damage  to  individuals  may 
be  ver3'  great,  and  yet  so  remote,  con- 
tingent, or  indefinite  as  to  furnish  no  good 
ground  of  action.  3  Term  R.  (53.  Without 
entering  further  into  the  explanation  of 
these  i)rinciples,  their  extent,  qualifica- 
tions, or  limitations,  we  will  proceed  to 
inquire  how  far  they  may  be  relied  upon 
in  support  of  this  action.  To  render 
them  applicable,  the  plaintiff  must  show 
that  he  has  sustained  damage  from  the 
tortious  act  of  the  defen<lant,  for  which  the 
established  forms  of  law  furnish  him  no 
remedy.  If  be  ma3'  have  redress  b3'  any  of 
the  forms  of  actions  now  known  and  prac- 
ticed, it  would  be  unwise  and  unsafe  to 
sanction  an  untried  one,  the  practical 
operation  of  which   cannot   be  full3'   fore- 


10 


LAW  OF  TORTS. 


seen.  The  court  will  adopt  a  new  remedy 
to  prevent  the  failure  of  justice,  or  to  en- 
force the  settled  principles  of  law,  but 
never  when  justice  can  be  attained  by  any 
of  the  remedies  already  known  to  the 
law.  Com.  Dig.  "Action  on  the  Case," 
B,  8. 

The  gist  of  the  injury  complained  of  is 
the  fraudulent  purchase  by  the  defendant 
of  the  property  of  the  plaintiff's  debtor. 
If  the  sale  was  fraudulent,  it  might  be 
avoided  by  the  creditors,  and  the  prop- 
erty was  liable  to  attachment  after  as  well 
as  before  the  conveyance.  The  fraud 
could  be  established  quite  as  easily  in  a 
suit  for  the  chattels  themselves  as  in  the 
present  case.  There  is  no  averment  that 
the  defendant  had  concealed  the  property, 
removed  it  out  of  the  commonwealth,  or 
in  any  other  waj'  so  disposed  of  it  that 
it  could  not  be  attaclied.  But  even  if  it 
were  so,  and  the  property  could  not  be 
come  at  to  be  attached  specifically,  yet  it 
might  be  attached  in  the  defendant's 
hands  by  the  trustee  process.  In  this 
event  the  defendant  would  be  compellable 
to  disclose  all  the  circumstances  attend- 
ing the  transaction  on  oath,  and,  if  he 
did  not  answer  truly,  would  be  liable  to 
a  special  action  on  the  case,  by  St.  1794,  c. 
65,  §  9.  It  would  be  difficult  to  show  any 
good  reason  why  the  plaintiff  might  not 
obtain  legal  justice  In  the  one  or  the 
other  of  these  modes,  as  easily  and  surely 
as  bv  the  present  action.  Burlingame 
V.  Beil,  16  Mass.  320;  Devoll  v.  Brownell,  5 
Pick.  448. 

It  was  said  in  argument  by  the  plain- 
tiff's counsel  that.  If  he  resorted  to  the 
trustee  process,  the  defendant  would  be 
entitled  to  any  equitable  set-off  which  he 
might  have  against  his  principal;  that,  if 
he  had  made  advances  or  paid  debts  in 
good  faith,  he  would  be  allowed  to  apply 
them  towards  satisfaction  for  the  i)rop- 
erty  conveyed  to  him  ;  and  so  the  plaintiff 
could  not  avail  himself  of  the  full  value  of 
the  property.  Andrews  v.  Ludlow,  5  Pick. 
32;  Eipley  v.  Severance,  6  Pick.  474;  Tj-pe 

6  Stereo-^ype  Foundry   Co.    v.    Mortimer, 

7  Pick.  166.  And  why  should  it  not  be 
so?  If  the  defendant  paid  bona  fide  the 
value  of  the  property,  the  plaintiff  is  not 
injured.  The  owner  had  good  right  to 
sell  to  whom  he  pleased,  and  to  prefer  any 
other  of  his  creditors  to  the  plaintiff.  If 
the  fraudulent  conduct  of  the  defendant 
has  done  no  injury  to  the  plaintiff,  he  can- 
not complain.  He  cannot  have  the  aid  of 
the  law  to  speculate  upon  the  defendant's 
fraud.  The  law  will  protect  him  from 
damage,  but  will  not  enable  him  to  derive 
advantage  from  tlie  fraudulent  conduct  ol 
the  defendant.  This  action,  if  sustained, 
would  establish  a  precedent  which  would 
produce  in  practice  great  inconvenience, 
and  oftentimes  do  manifest  injustice.  If 
the  plaintiff  may  maintain  this  action 
against  the  defendant,  so  may  every  cred- 
itor of  Thompson.  Theplaintiff  had  done 
nothing  to  give  hiu)  priority.  Sliall  tiio 
fraudulent  purchaser  he  holden  to  pa3'  all 
the  debts  (jf  the  fraudulent  vendor?  Jus- 
tice does  not  require  this.  The  convey- 
ance mi;:ht  be  fraudulent  in  law,  and  yet 
there  might  be  no  moral  turpitude  in  the 
transaction.       The     property      c(»nveyed 


might  be  very  small,  and  the  debts  very 
large.  Shall  the  value  of  the  property 
transferred  be  apportioned  among  all  the 
creditors?  By  what  rules  shall  the  ap- 
portionment be  made?  Shall  the  creditor 
who  first  sues  be  entitled  to  the  whole,  if 
his  debt  be  large  enough  to  require  the 
whole  for  its  satisfaction?  If  one  cred- 
itor should  attach  the  property  specific- 
ally, another  should  summon  the  fraud- 
ulent vendee  as  trustee  of  the  vendor,  and 
a  third  should  commence  an  action  like 
this,  which  would  have  the  preference? 
Can  the  same  party  resort  to  more  than 
one  of  these  remedies  at  the  same  time? 
And  would  the  judgment  in  the  one  be  a 
bar  to  the  other?  Many  cases  might  oc- 
cur in  which  it  would  be  extremely  diffi- 
cult to  adopt  any  rule  of  damages  which 
would  do  justice  to  all  tlie  parties  inter- 
ested. 

But  besides  these  practical  inconvenien- 
ces, which  are  of  themselves  insurmount- 
able, there  is  another  objection  fatal  to  the 
present  action.  The  injury  complained  of 
is  too  remote,  indefinite,  and  contingent. 
To  maintain  an  action  for  the  deceit  or 
fraud  of  another,  it  is  indispensable  that 
the  plaintiff  should  show,  not  only  that  he 
has  sustained  damage  and  that  the  de- 
fendant has  committed  a  tort,  but  that 
the  damage  is  the  clear  and  necessary  2t»n- 
sequence  of  the  tort,  and  that  it  can  be 
clearly  defined  and  ascertained.  What 
damage  has  the  plaintiff  sustained  by  the 
transfer  of  his  debtor's  property-?  He  has 
lost  no  lien,  for  he  had  none.  No  attach- 
ment has  been  defeated,  for  none  had  been 
made.  He  has  not  lost  the  custody  of  his 
debtor's  body,  for  he  hud  not  arrested  him. 
He  has  not  been  prevented  from  attach- 
ing the  property  or  arresting  the  body  of 
his  debtor,  for  he  never  had  procured  any 
writ  of  attachment  against  him.  He  has 
lost  no  claim  upon  or  interest  in  the  prop- 
erty, for  he  never  had  acquired  either.  The 
most  that  can  be  said  is  that  he  intended 
to  attach  the  property,  and  the  wrongful 
act  of  the  defendant  has  prevented  him 
from  executing  his  intention.  Is  this  an 
injury  for  which  an  action  will  lie?  How 
can  the  secret  intentions  of  the  party  be 
proved?  It  may  be  he  would  have  changed 
this  intention.  It  may  be  the  debtor  would 
have  made  a  bona  tide  sale  of  the  proper- 
ty to  some  other  person,  or  that  another 
creditor  would  have  attached  it,  or  that 
the  debtor  would  have  died  insolvent  be- 
fore the  plaintiff  could  have  executed  his 
intention.  It  is  therefore  entirely  uncer- 
tain whether  the  plaintiff  would  have  se- 
cured or  obtained  payment  of  his  debt,  if 
the  defendant  never  had  interfered  with 
the  debtor  or  his  property*.  Besides,  his 
debt  remains  as  valid  as  it  ever  was.  He 
may  yet  obtain  satisfaction  from  proper- 
ty of  his  debtor,  or  his  debtor  maj'  return 
and  pay  him.  On  the  whole,  it  does  not 
appear  that  the  tort  of  the  defendant 
caused  any  damage  to  the  plaintiff.  But 
even  if  so,  yet  it  is  too  remote,  indefinite, 
and  contingent  to  be  the  ground  of  an  ac- 
tion. 

Among  the  many  cases  cited  by  the 
plaintiff's  counsel,  those  of  Adams  v. 
Paige,  7  Pick.  .542 ;  Yates  v.  Joyce,  11  Johns. 
136;  and   Smith    v.   Tonstall,   Carth.   3,— 


GENERAL  PKINCIPLES 


11 


t)ear  the  greatest  resemblance  to  the  case 
at  bar.  But  an  examination  of  these 
cases  will  not  only  show  that  there  is  an 
obvious  and  broad  distinction  between 
them  and  theone  under  consideration,  but 
that  the  principles  adopted  in  all  of  them 
tiuppovt  the  ground  now  taken  by  the 
court.  In  Adams  v.  Paige  the  plaintiffs 
Lad  made  an  attachment  of  the  property 
of  their  debtor.  The  two  defendants,  one 
of  whom  was  the  debtor,  had  caused  a 
previous  attachment  to  be  made  of  the 
•«ame  property  on  a  fictitious  debt  which 
they  had  created  for  the  purpose  of  pre- 
venting attacliments  on  bona  Gde  debts. 
The  suit  upon  which  the  fraudulent  at- 
tachment was  made  was  pursued  to 
judgment,  the  property  attached  was  sold 
on  execution,  and  the  proceeds  of  the  sale 
remained  in  the  hands  of  the  fraudulent 
judgment  debtor.  Now,  by  these  conclu- 
sive acts,  the  plaintiffs'  attachment  was 
defeated,  and  the  price  of  the  property, 
which  but  for  the  fraudulent  acts  of  the 
defendants  would  have  been  applied  to 
the  satisfaction  of  the  plaintiffs'  execu- 
tion, was  holden  by  one  of  the  defendants. 
Here  the  loss  of  the  debt  was  the  conse- 
quence of  the  loss  of  the  lien,  and  the  loss  of 
the  lien  was  the  clear  and  cei'tain  conse- 
quence of  the  fraudulent  conduct  of  the  de- 
fendants. The  injury  was  direct  and  cer- 
tain, and  the  damages  easily  shown  and 
defined.  Thejusticeof  the  plaintiffs' claim 
was  very  obvious,  and  their  recovery 
founded  on  the  soundest  principles  of  law. 
Besides,  if  we  were  looking  for  distinctions 
between  Adams  v.  Paige  and  the  case  at 
'bar,  it  would  be  sufficient  to  state  that 
the  former  was  an  action  for  a  conspiracy 
-between  two,  to  defraud  the  plaintiffs  by 


means  of  a  fictitious  debt  and  a  collusive 
judgment,  in  which  the  unlawful  confeder- 
acy was  the  gist  of  the  action.  In  Yates 
V.  Joyce,  the  plaintiff,  by  means  of  a  judg- 
ment against  his  debtor,  had,  according 
to  the  laws  of  New  York,  acquired  a  lien 
on  certain  property,  wliich  was  injured 
and  reduced  in  value  by  the  tortious  acts 
of  the  defendant, so  as  to  be  insufficient  to 
satisfy  the  plaintiff's  judgment.  The 
plaintiff  suffered  an  injury  for  which  he 
iiad  no  other  remedy.  The  damage  was 
definite  and  certain,  and  was  the  direct 
and  necessary  consequence  of  the  defend- 
ant's tort.  His  right  to  recover  was  un- 
questionable. The  old  case  of  Smith  v. 
Tonstall,  Garth.  3,  is  very  similar,  and 
rests  upon  the  same  principle.  The  plain- 
tiff having  obtained  a  judgment  against 
one  S.,  the  defendant  procured  S.  to  con- 
fess a  judgment  to  hi«iself  when  nothing 
was  due  to  him.  This  collusive  judgment 
was  satisfied  by  thesaleof  goods  on  which 
the  plaintiff,  by  his  prior  judgment,  had  ac- 
quired a  lien;  thus  placing  in  the  defend- 
ant's hands  the  price  of  goods  which  were 
liable  for  the  plaintiff's  judgment.  In  all 
these  cases  the  plaintiffs  had  a  clear  and 
valuable  interest  in  or  lien  on  certain 
property,  which  was  defeated  or  destro^-ed 
by  the  tortious  acts  of  the  defendants. 
Not  so  in  the  case  at  bar.  The  plaintiff 
d(»es  not  allege  that  he  had  any  special 
property  or  any  interest  in  or  claim  on 
any  property  which  was  destroj'ed  or  in- 
jured by  any  act  of  the  defendant.  And 
we  are  all  of  opinion  that  he  has  not  set 
forth  any  such  ground  of  action  as  can  be 
sustained  upon  any  known  principles  of 
law.  Vernon  v.  Keys,  12  East,  632. 
Judgment  arrested. 


(See,  also,  Randall  v.  Hazelton,  13  Allen,  412;  Hutchins  v.  Hutchins,  7  Hill,  104;  Hevwood  v.  Till- 
son,  75  Me.  225;  Bradley  v.  Fuller,  118  Mass.  239;  Long  v.  Warren,  68  N.  Y.  42(i;  remarks  of  Stephen*, 
J.,  in  Alderson  v.  Maddison,  5  Exch.  Div.,  at  page  296;  remarks  of  Lord  Herschell  in  Derry  v. 
Peek,  L.  R.  14  App.  Cas.,  at  page  376.) 


Illustration  of  the  establishment  of  legal  rights  by  the  common  la"w, 
as,  e.  g.,  in  the  decision  of  "cases  of  novel  impression." 


(L.  R.  9  Exch.  218.) 

Western  Counties  M.wukr  Co.v.  Lawes 
Chemical  Manure  Co. 

{Court  of  Exchequer.    June  9, 1874. ) 

'Words  Actionable — Disparagement  of  Quality 
OF  Goods. 
An  untrue  statement  disparaging  the  goods  of 
another,  made  without  lawful  occasion,  and  caus- 
ing special  damage  to  the  owner  of  the  goods,  is 
actionable.  Young  v.  Macrae,  3  Best.  &  S.  2()4, 
distinguished. 

Action  by  the  Western  Counties  Manure 
Company  against  the  Lawes  Chemical 
Manure  Company.  The  declaration  al- 
leged that  "at  the  time  of  the  committing, 
etc.,  the  plaintiffs  carried  on  business  as 
manufacturers  and  sellers  of  artificial 
manures,  and  had  upon  sale  certain  arti- 
ficial manures,  and  the  defendants  also 
■carried  on  business  as  manufacturers  and 
sellers  of  artificial  manure^,  and  had  on 
sale  certain  artificial  manures;  that  the 
defendants,  well  knowing  that  the  plain- 
tiffs were  carrying  on  the  aforesaid   busi- 


ness and  selling  the  said  artificial  manures, 
and  contriving  and  intending  to  injure 
the  plaintiffs  in  their  business,  falsely  and 
mal:ciousl3'  printed  and  published,  and 
caused  to  be  printed  and  published,  of 
and  concerning  the  plaintiffs,  and  of  and 
concerning  them  as  such  manufactuiers 
and  sellers  of  artificial  manures,  the  words 
following:  'Chemical  Laboratory,  Uni- 
versity of  Glasgow,  January  29,  1S73. 
Dear  Sir:  I  inclose  herewitii  analj'sis  of 
your  four  samples  of  mauure,  which  differ 
much  in  quality.  They  are  all  mixtures, 
and  do  not  consist  of  bones  and  acid 
alone.  No.  2  [meaning  therebj'  the  de- 
fendants* artificial  manures]  is  much  the 
best,  and  seems  to  contain  some  kind  of 
phosphatic  guano.  No.  4  [meaning  there- 
by the  plaintiffs'  said  artificial  manures] 
appears  to  contain  a  considerable  quanti- 
ty of  '"oprolites,  and  is  altogether  an  arti- 
cle of  l(jw  quality,  and  ought  to  be  the 
cheapest  of  the  four.  The  other  two  are 
fair  articles,  and  may  be  usefully  em- 
ployed.    It  is   not  for  me  to  put  an   exact 


12 


LAW  OF  TORTS. 


value  upon  the  samples,  as  the  prices' 
charged  for  manures  in  different  parts  of 
the  country  differ  to  an  extraordinary  ex- 
tent. I  Icuow  places  where  No.  2  [mean- 
ing the  defendants' said  artificial  manures] 
would  be  sold  at  about  87.  per  ton; 
others,  where  77.  would  be  its  price.  I 
may  state,  however,  the  relative  values 
thus:  Suppose  the  price  charged  for  No. 
2  [meaning  the  defendants'  said  artificial 
manures]  to  be  S7.  per  ton.  Then  No.  1 
should  be  worth  77.;  No.  3,  57.  10s.;  and 
No.  4,  [meaning  the  plaintiffs'  said  arti- 
ficial manures,]  57.  Of  course,  these  must 
betaken  as  approximation  only,  and  may 
be  modified  by  the  nature  of  the  bargain; 
but  thej'  should  be  in  these  proportions.' 
[Then  followed  an  analj^sis  in  detail,  pur- 
porting to  show  the  proportion  of  phos- 
phates and  ammonia  in  the  plaintiffs'  and 
defendants'  artificial  manures,  respect- 
ively.] Meaning  thereby  that  the  said 
artificial  manures  so  manufactured,  sold, 
and  traded  in  by  the  plaintiffs  were  arti- 
ficial manures  of  an  inferior  quality  to  the 
said  artificial  manui'es,  and  especially 
were  of  an  inferior  quality  to  the  said  ar- 
tificial manures  of  thedefendants.  Wliere- 
as,  in  truth  and  in  fact,  the  said  artificial 
manures  so  manufactured,  sold,  and  trad- 
ed in  by  the  plaintiffs  were  not  of  an  in- 
ferior quality,  and  especially  were  not  in- 
ferior in  quality  to  the  said  artificial 
manures  of  thedefendants.  And  by  I'ea- 
son  of  the  premises,  [here  followed  an  al- 
legation of  special  damage.]  "  Demurrer 
and  joinder. 

Arthur  Charles,  in  support  of  the  decla- 
ration. 

The  malicious  publication  of  a  falsehood 
depreciating  the  plaintiffs'  goods,  and 
causing  liim  pecuniar^  damage,  is  action- 
able. Harman  v.  Delany,  2  Strange,  898. 
In  Evans  v.  Uarlow,  5  Q.  B.  624.  it  was 
held  that  special  damage  must  be  alleged, 
but  it  seems  to  have  been  assumed  there 
that  an  action  would  lie  for  untrue  and 
disparaging  statements  about  the  goods 
of  a  tradesman  where  special  damage  has 
been  suffered.  It  must  be  conceded  that 
these  words  are  not  libelous  in  the  ordi- 
nary sense;  but  the  case  is  similar  to  an 
action  for  slander  of  title,  which,  as  is 
pointed  out  by  Tixdal,  C.  J.,  in  Malachy 
V.  Soper,  3  Bing.  N.  C,  at  page  383,  is  not 
"an  action  for  words  spoken  or  for  a  libel 
written  and  published,  but  an  action  on 
the  case  for  special  damage  sustained  by 
reason  of  the  speaking  or  publication  of 
the  .slander  of  the  plaintiff's  title.  "  Young 
V.  Macrae,  3  Best  &S.  264, 32  Law  J.Q.B.  6, 
may  be  relied  on  by  the  defendants.  But 
there  all  that  was  decided  was  that  an 
action  will  not  be  maintainable  against  a 
man  who  is  only  alleged  to  have  made 
untrue  statements  about  the  quality  of 
his  own  goods.  Here  there  is  a  distinct 
statement  that  the  plaintiffs'  manures 
are  "altogether  of  a  low  quality." 

Bo  wen,  opposed. 

The  declaration  does  not  allege  that  the 
defendants  knew  that  thp  statements  were 
false,  and  amounts  to  no  more  than  a 
puff  by  one  tradesman  of  his  own  goods. 
Young  v.  Macrae,  3  Best  &  S.  264,  32  Law 
J.  Q.  B.  6,  is  in  point,  for  the  ratio  deci- 
demlj  was  that  the  mere  comparison  by 


the  defendant  of  his  own  goods  with  the 
plaintiff's,  to  the  plaintiff's  disadvantage, 
is  not  actionable.  Burnet  v.  Wells,  12' 
Mod.  420.  The  cases  of  "slander  of  title" 
are  not  analogous  to  the  present  case,  for 
in  them  the  plaintiff's  jjroprietary  rights 
are  affected.  There  is  no  authority  which 
goes  so  far  as  to  justify  the  proposition 
now  contended  for.  In  all  the  cases,  either 
the  words  used  amount  to  a  personal  im- 
putation on  the  plaintiff  personally  or  as 
a  tradesman,  or  else  they  affect  his  prop- 
erty'. Thus  Harman  v.  Delanj',  2  Strange, 
S98,  was  a  elander  of  the  plaintiff  person- 
ally in  the  way  of  his  trade. 

[Poi.LOCK,  B.  This  declaration  alleges 
that  the  statement  was  made  falsely  and 
maliciously,  and  contriving  to  injure  the 
plaintiffs.] 

The  mere  telling  of  a  falsehood,  evea 
though  It  be  told  maliciously,  does  not 
give  a  cause  of  action.  Miller  v.  David, 
L.  R.9C.  P.  lis. 

Bramwell,  B.  In  this  case  our  judg- 
ment must  be  for  the  plaintiffs.  The  case 
may  be  shortly  stated  thus:  The  plain- 
tiffs trade  in  a  certain  article  of  manure, 
and  it  is  alleged  that  the  defendants  false- 
ly and  maliciously  published,  of  and  con- 
cerning that  manure,  and  of  and  concern- 
ing the  plaintiffs'  trade  and  manufacture, 
a  certain  statement  which  contains  in  it 
this:  that  it  was  an  article  of  low  quali- 
t3%  and  ought  to  be  the  cheapest  of  four,  of 
which  this  is  one,  the  others  being  men- 
tioned. So  far  an  action  would  not  be 
maintainable,  because  It  is  not  libeling  an 
article  to  say  that  it  is  an  article  of  low 
quality,  and  ought  to  be  cheaper  than 
others.  That  part  is  not  specifically  stat- 
ed to  beuntrue,  but  having  been  published, 
as  it  is  said,  of  and  concerning  the  plain- 
tiffs' manufactures  and  trade,  the  declara- 
tion goes  on  and  saj's  :  "Meaning  thereby 
that  the  artificial  manures  so  manufact- 
ured and  traded  in  by  the  plaintiffs  were 
artificial  manures  of  inferior  quality  to 
other  artificial  manures,  and  that  they 
especially  were  of  inferior  quality  to  the 
artificial  manures  of  the  defendants."  I 
think  if  it  stopped  there  it  would  not  be 
the  subject-matter  of  an  action,  even  with 
special  damage  resulting  from  it,  because 
I  do  not  see  that  it  is  injurious  to  an  arti- 
cle to  say  that  it  is  of  inferior  quality.  It 
ma3'  attract  certain  customers,  and  it  is  a 
very  good  thing  that  people  can  be  found 
who  will  sell  things  of  an  inferior  quality 
in  order  that  they  may  not  be  wasted. 
But  what  makes  the  action  maintainable 
is  the  allegation  that  follows:  "  Whereas, 
in  truth  and  in  fact,  the  said  artificial 
manures  so  manufactured  and  traded  in 
by  the  plaintiffs  were  not  of  Inferior  quali- 
ty, and  were  not  inferior  in  quality  to  the 
said  articles  of  manure  of  thedefendants;" 
and  by  reason  of  the  premises  certain  per- 
sons who,  if  thej-  had  not  been  told  that 
which  was  untrue,  would  have  continued 
to  deal  with  the  plaintiffs,  are  alleged  to 
have  ceased  to  deal  with  them.  So  that  it 
appears  there  was  a  statement  published 
hy  the  defendants  of  the  plaintiffs'  manu- 
facture, which  is  comparatively  disparag- 
ing of  that  manufacture,  which  is  untrue 
so  far  as  it  disparages  it,  and  which   ha» 


GENERAL  PRINCIPLES. 


33 


been  productive  of  special  damage  to  the 
plaintiffs;  and  it  is  stated  that  that  pub- 
lication was  made  falsely  and  "malicious- 
]y,"  which  possibly  may  mean  nothing 
more  than  that  ii  was  made  falsely,  and 
without  reasonable  cause,  calling  for  a 
statement  b^- the  defendants  on  the  sub- 
ject. But,  if  actual  malice  is  necessary,— 
which  I  do  not  think  is  the  case.— the  alle- 
gation is  suflicient.  It  seems  to  me,  how- 
ever, that  where  a  plaintiff  sajs.  "You 
have  without  lawful  cause  made  a  false 
statement  al)out  my  goods,  to  their  com- 
parative disparagement,  which  false  state- 
ment has  caused  me  to  lose  customers," 
an  action  is  maintainable. 

I  do  not  go  through  the  cases,  but  un- 
doubtedly there  is  nothing  in  any  of  them 
inconsistent  with  the  judgment  we  now 
pronounce.  The  only  case  that  I  will  refer 
to  is  Young  V.  Macrae,  3  Best  &  S.  2G4. 
"When  examined,  that  case  will  be  found 
to  differ  materially-  from  this  one.  The 
disparaging  statement  there  was  not  ex- 
pressly said  to  be  untrue.  It  was  onl^' 
eaid,  generallj',  that  the  libel  was  untrue, 
which  it  might  be  if  oidy  so  much  of  it 
was  untrue  as  contained  praise  of  tlie  de- 
fendants' own  goods.  On  the  general 
principle,  therefore,  that  an  untrue  state- 
ment disparaging  a  man's  goods,  pub- 
lished without  lawful  occasion,  and  caus- 
ing him  special  damage,  is  actionable,  we 
give  our  judgment  for  the  plaintiffs. 

Poi,i.ocK,  B.  I  agree  that  our  judgment  in 
this  case  should  be  in  favor  of  the  plaintiffs. 
This  case,  no  doubt,  involves  first  princi- 
ples. On  the  one  hand,  the  law  is  strong- 
ly against  the  invention  or  creation  of  any 
rights  of  action;  but.  on  the  other  hand, 
where  a  wnmg  has  actually  been  suffer-^d 
by  one  person  in  consequence  of  the  con- 
duct of  another,  one  is  anxious  to  uphf)ld 
as  far  as  possible  the  maxim,  ubijusibi  re- 
iiiedinm.  It  seems  to  me  the  present  case 
<'omes  within  that  rule.  Now,  in  the  first 
])lace.  this  is  not  an  action  of  libel.  I 
think  it  is  entirely  distinguishable  from 
that  class  of  cases.  It  is  alleged  in  the 
declaration  that  the  matter  complained 
of  here  was  written.  I  think  that  makes 
no  distinction.  I  will  not  say  more  upon 
that  than  that  the  difference  between  a 
written  or  verbal  statement  of  the  kind 
now  complained  of  and  an  ordinary  de- 
famatory statement  is  very  cleai-ly  point- 
ed out  by  TiND.\r,,  C.  .1 .,  in  his  judgment 
in  Malachy  v.  Soper,  3  Bing.  N.  C,  at  page 
3S6.  This  action  is,  I  think,  in  the  nature 
of  an  action  of  slander  of  title,  and  comes 
within  the  general  rule  laid  down  as  to 
such  actions  in  Comyn's  Digest,  where  it 
is  said  that  an  action  lies  when  special 
damage  is  shown.  Title,  "Action  on  Case 
lor  Defamation."  G  11. 

The  only  question,  therefore,  that  .seems 
to  arise,  is.  what  is  the  fair  intention  of 
the  words?  It  is  alleged  that  the  defend- 
ants were  contriving  and  intending  to  in- 
jure the  plaintiffs  in  their  business,  and 
that  they  falsely  and  maliciously  printed 
and  published  the  words  in  question. 
Now,  I  do  not  attach  any  special  meaning 
to  the  word  "  maliciously,"  except  so  far 
as  it  must  be  taken  with  the  words,  "con- 
triving and  intending   to  injure  the  plain- 


I  tiffs."  I  think  that  deprives  the  defend- 
ants of  what  I  may  call  any  legal  occasion 
or  opportunity  on  which  they  might  use 
words  of  this  kind.  Therefore  we  have  it 
stated  that,  without  legal  occasion,  with- 
out any  neces.sity,  the  defendants  have 
used  language  of  and  concerning  the  plain- 
tiffs' goods  which  not  onlj-  are  false,  but 
are  such  as  to  injure  the  plaintiffs  in  their 
business,  and  special  damage  is  alleged. 
When  all  these  things  concur,  it  seems  to 
me  a  good  cause  of  action  is  disclosed. 
With  reference  to  the  irases  that  have  been 
cited,  (Malachy  v.  Soper.3  Bing.  X.  C.  371; 
Evans  v.  Harlow,  n  Q.  B.  024;  and  Young 

i  v.  Macrae.  3  Best  &  S.  2r»4,)  I  would  only 
observe  that  in  the  two  first-mentioned 
cases  there  is  no  allegation  of  special  dam- 
age, while  the  last  is  distinguishable  on 
the  grounds  mentioned  bj-  my  Brother 
Bh.\mwei.l.  Moreover,  there  the  chief 
justice  in  his  judgment  (3  Best  &  S.,  at 
page  271)  supposes  a  case  very  like  the 
present  one,  and  states  that,  in  his  opin- 
ion, an  action  would  lie  in  such  circum- 
stances. 
Judgment  for  plaintiffs. 


(121  Mass.  393.) 

Rice  v.  Coolidge  et  al. 

{Supreme  Judicial  Court  of  Massachusetts. 
December  1,  lb76.) 

1.  Defamation- — Scborxatiox  of  Perjury. 

One  who  suborns  witnesses  to  swear  falsely  to 
defamatory  statements  concerning  another,  in  a 
suit  to  which  neither  of  them  is  a  party,  is  lia- 
ble to  an  action  by  the  person  tvhose  character 
is  so  defamed.  That  the  perjured  witness  is  pro- 
tected by  his  personal  privilege  from  a  civil  suit 
does  not  exempt  the  person  who  suborns  him, 
they  being  joint  tort-feasors.  Nor  is  the  novelty 
of  such  an  action  a  valid  objection  thereto.  Bost- 
wick  V.  Lewis.  2  Day.  447;  Smith  v.  Lewis.  3 
Johns.  1.57;  Dunlap  v.  Glidden,  31  Me.  435,  dis- 
tinguished. 

2.  Same — Pleadixg. 

A  declaration  in  such  an  action,  each  count  of 
which  alleges  the  procuring  and  suborning  of 
several  witnesses  to  testify  falsely  to  defamatory 
matter  concerning  plaintiff,  such  different  acts 
being  all  parts  of  one  scheme,  sets  forth  but  one 
cause  of  action. 

3.  Same— Damages. 

Special  damages  need  not  be  alleged  in  such  an 
action,  the  natural  and  necessary  consequences 
of  the  acts  chai'ged  being  lo  injure  plaintiff. 

Demurrer  to  declaration,  Suffolk  coun- 
ty- 
Action   by  Sarah    M.  Rice  against  John 
T.  Coolidge   and   others.     Defendants   de- 
murred to  plaintiff's  declaratiun. 

E.  D.  Sohier  and  E.  Olney.  for  plaintiff. 
S.  Bartlftt  and  D.  Thaxter,  for  the  de- 
fendants. 

Morton,  J.  This  is  an  action  of  tort. 
The  principal  question  raised  by  the  de- 
murrer is  whether  the  plaintiff's  declara- 
tion states  anj-  legal  cause  of  action. 
Each  count  alleges,  in  substance,  that  a 
proceeding  for  a  divorce  was  pending  in 
the  courts  of  the  state  of  Iowa  between 
Josepli  S.  Cooliilge  and  Marj'  L.  Coolidge, 
in  which  the  latter  alleged  that  the  said 
Joseph  S.  Coolidge  had  been  guilty  of 
adultery  with  the  plaintiff;  that  the  de- 
fendants conspired   together  and  with  the 


14 


LAW  OF  TORTS. 


said  Mary  L.Cooliclge  to  procure  and  sub- 
orn witnesses  to  lalselj'  testify  in  sup- 
port of  said  cliargesof  adultery  ;  and  that 
the  defendants,  in  pursuance  and  execu- 
tion of  said  conspiracy,  did  procure  and 
suborn  certain  witnesses  named,  to  testi- 
fy in  said  divorce  suit,  and  to  falsely 
swear  to  criminal  sexual  Intercourse  be- 
tween the  plaintiff  and  said  Joseph  S. 
Coolidge,  and  betAveen  the  plaintiff  and 
other  persons,  and  to  various  other  acts 
and  things  which,  if  believed,  would  tend 
to  bring  disgrace  and  infamy  upon  tlie 
plaintiff.  Three  of  the  counts  also  allege 
that  the  defendants,  in  pursuance  and 
execution  of  the  conspiracy,  published,  or 
caused  to  be  publislied,  a  printed  pam- 
phlet, in  whfch  the  false  testimony  of  such 
witnesses  was  repeated,  and  made  the 
pretext  for  false  and  malicious  charges  up- 
on the  plaintiff's  character  and  good 
name.  The  gist  of  the  plaintiff's  case  is 
that  the  defendants  have  suborned  wit- 
nes.ses  to  falsely  swear  to  defamatory 
statements  concerning  her,  and  have  done 
other  connected  acts  in  pursuance  of  a 
scheme  or  plan  to  defame  her.  The  al- 
leged conspiracy  or  combination  is  not 
one  of  tlie  elements  of  the  cause  of  action. 
That  is  not  created  by  the  conspiracy,  but 
by  the  wrongful  acts  done  bj'  the  defend- 
ants to  the  injury  of  the  plaintiff.  If  the 
acts  charged,  when  done  by  one  alone, 
are  not  actionable,  they  are  not  made  ac- 
tionable by  being  done  by  several  in  pur- 
suance of"  a  conspiracy.  Wellington  v. 
Small,  3  Cush.  145;  Parker  v.  Hunting- 
ton,2  Gray, 124;  Bowen  v.  Matheson,  14  Al- 
len, 499.  The  question  is  presented,  there- 
fore, whether  the  plaintiff  can  maintain 
an  action  of  tort,  in  the  nature  of  the 
common-law  action  on  the  case,  against 
the  defendants  for  suborning  witnesses  to 
falsely  swear  to  defamatc»ry  statements 
concerning  the  plaintiff  in  a  suit  in  which 
neither  of  the  parties  to  this  suit  was  a 
party. 

It  requires  no  argument  to  show  that 
the  acts  charged  as  done  by  the  defend- 
ants, if  proved,  are  a  great  wrong  upon 
the  plaintiff.  It  is  a  general  rule  of  the 
common  law  that  a  man  shall  have  a 
remedy  for  every  injury.  The  plaintiff 
should  have  a  remedy  for  the  injury  done 
to  her  by  the  defendants,  unless  there  are 
some  other  rules  of  law,  or  some  control- 
ling considerations  of  public  policy,  which 
take  the  case  out  of  this  rule.  The  defend- 
ants contend  that  the  witnesses  who  ut- 
tered the  defamatory  statements  are  pro- 
tected from  an  action,  because  they  were 
statements  made  in  the  course  of  judicial 
proceedings,  and  that,  therefore,  a  person 
who  procured  and  suborned  them  to 
makethe  statements  is  not  liable  to  an  ac- 
tion. It  seems  to  be  settled  by  the  En- 
glish authorities  that  judges, counsel,  par- 
ties, and  witnesses  are  absolutely  ex- 
empted from  liability  to  an  action  for  de- 
famatory words  published  in  the  course  of 
judicial  proceedings.  Henderson  v.  Broom- 
head,  4  Hurl.  &  N.  509;  Revis  v.  Smith, 
lis  C.  B.  12G:  Dawkins  v.  Rokeby,  L.  R.  8 
Q.  B.  255,  and  cases  cited;  affirmed,  L.  R. 
7  H.  L.  744;  Seaman  v.  Netherclift,  1  C.  P. 
Div.  540.  The  same  doctrine  is  generally 
held  in    the  American    courts,   with    the 


qualification,  as  to  parties,  counsel,  and 
witnesses,  that,  in  order  to  be  privileged, 
their  statements  made  in  the  course  of  an 
action  must  be  pertinent  and  material  to 
the  case.  White  v.  Carroll,  42  N.  Y.  161; 
Smith  V.  Howard,  28  Iowa,  51  ;  Barnes 
v.  McCrate,  32  Me.  442;  Kidder  v.  Park- 
hurst,  3  Allen,  393;  Hoar  v.  Wood,  3  Mete. 
(Mass.)  193.  In  the  last-cited  case,  Chief 
Justice  Shaw^  saj's:  "We  take  the  rule  to 
be  well  settled  by  the  authorities  that 
words  spoken  in  the  course  of  judicial 
proceedings,  though  they  are  such  as  im- 
pute crime  to  another,  and  therefore,  if 
spoken  elsewhere,  would  import  malice 
and  be  actionable  in  themselves,  are  not 
actionable  if  they  are  applicable  and  per- 
tinent to  the  subject  of  inquii'y."  We  as- 
sume, therefore,  for  the  purposes  of  this 
case,  that  the  plaintiff  cannot  maintain 
an  action  against  the  witnesses  in  the 
suit  in  Iowa  for  their  defamatory  state- 
ments, though  they  were  false.  But  it 
does  not  follow  that  she  may  not  main- 
tain an  action  against  those  who,  with 
malice  and  intent  to  injure  her,  procured 
and  suborned  those  witnesses  to  testify 
falsely.  The  reasons  why  the  testimony 
of  witnesses  is  privileged  are  that  it  is 
given  upon  compulsion,  and  not  volunta- 
rily ;  and  that,  in  order  to  promote  the 
most  thorough  investigation  in  courts  of 
justice,  public  policy  requires  that  wit- 
nesses shall  not  be  restrained  by  the  fear 
of  being  vexed  by  actions  at  the  instance 
of  those  who  are  dissatisfied  with  their 
testimony.  But  these  reasons  do  not  ap- 
ply to  a  stranger  to  the  suit,  who  pro- 
cures and  suborns  false  witnesses,  and  the 
rule  should  not  be  extended  beyond  those 
cases  which  are  within  its  reasons. 

The  argument  that  an  accessorj^  cannot 
be  held  civilly  liable  for  an  act  for  which 
no  remedy  can  be  had  against  the  princi- 
pal is  not  satisfactory  to  our  minds.  The 
perjured  witness  and  the  one  who  suborns 
him  are  joint  tort-feasors,  acting  in  con- 
spiracy orcombination  to  injure  the  party 
defamed.  The  fact  that  one  of  them  is  pro- 
tected from  a  civil  suit  by  a  personal  priv- 
ilege does  not  exempt  the  other  joint  tort- 
feasor from  such  suit.  A  similar  argument 
was  disregarded  by  the  court  in  Emery  v. 
Hapgood,  7  Gray,  55,  where  it  was  held 
that  the  defendant,  who  instigated  and 
procured  an  officer  to  arrest  the  plaintiff 
upon  a  void  warrant,  was  liable  to  an  ac- 
tion of  tort  therefor,  although  the  officer 
who  served  the  warrant  was  protected 
from  an  action  for  reasons  of  public  pol- 
icy. The  defendants  rely  upon  the  cases 
of  Bostwiek  v.  Lewis,  2  Day,  447,  and 
Smith  V.  Lewis,  3  Johns.  157.  But  those 
cases  turn  upon  a  principle  which  does  not 
apply  in  the  case  at  bar.  The  facts  in 
those  cases  were  as  follows:  Lewis 
brought  an  action  in  Connecticut  against 
several  defendants,  in  which  he  prevailed. 
Afterwards  Bostwick,  one  of  the  defend- 
ants in  the  original  action,  brought  an  ac- 
tion in  Connecticut  against  Lewis,  for 
suborning  a  witness  in  that  action;  and 
Smith,  another  of  the  defendants,  brought 
a  similar  action  in  New  York.  It  was 
held  in  each  case  that  the  action  could  not 
be  maintained,  because,  in  the  language 
of  Mr.  Justice  Kent,  it  was  "an  attempt. 


GENERAL  PRINCIPLES. 


15 


to  overhaul  the  merits"  of  a  former  suit. 
The  case  of  Dunlap  v.  Glidden,  31  Me.  435, 
is  to  the  same  effect.  Althouj?h  tlie  par- 
ties to  a  former  action  cannot  retry  irs 
merits,  while  a  judgment  therein  is  in  force 
and  unreversed,  yet  any  person  who  was 
not  a  party  to  the  action  or  in  privity 
with  a  part}'  maj-,  in  a  collateral  acticm. 
impeach  the  judgment  and  overhaul  the 
merits  of  the  former  action.  Those  cases, 
therefore,  are  not  decisive  of  the  case  at 
bar. 

The  defendants  argue  that  an  action  of 
this  nature  ought  not  to  be  maintained, 
because  the  plaintiff  thprein  might,  by  the 
testimony  of  a  single  witness,  prove  that 
a  witness  in  another  action  had  commit- 
ted perjurj'.  The  rule  of  law  that  a  man 
cannot  be  convicted  of  perjury  upon  the 
unaided  testimony  of  one  witness  is  a  rule 
applicable  only  to  criminal  proceedings. 
The  argument  may  go  to  show  that  the 
rule  ought  to  be  extended  to  civil  cases  in 
which  perjury  is  charged  against  a  wit- 
ness, but  it  does  not  furnish  a  satisfactory 
reason  why  a  plaintiff  should  be  altogeth- 
er deprived  of  a  remedy  for  an  injury  in- 
flicted upon  him. 

It  is  also  urged,  as  an  argument  against 
the  maintenance  of  this  action,  that  it  is 
a  novelty.  The  fact  that  an  action  is 
without  a  precedent  would  call  upon  the 
court  to  consider  with  care  the  question 
whether  it  is  justified  by  correct  prin- 
ciples of  law;  but,  if  this  is  found,  it  is 
■without  weight.  In  answer  to  the  same 
argument.  Lord  Chief  Justice  Willes  said  : 
"A  special  action  on  the  case  was  intro- 
duced for  this  reason,  that  the  law  will 
never  suffer  an  injury  and  a  damage  with- 
out a  remedy,  but  there  must  be  new  facts 
in  every  special  action  on  the  case." 
Winsmore  v.  Greenbank,  Willes,  577.  Up- 
on a  careful  consideration  of  the  case,  we 
are  of  opinion  that  there  are  no  rules  of 
law  and  no  reasons  of  public  policy  which 
deprive  the  plaintiff  of  her  remedy  for  the 
wrong  done  her  by  the  defendants  by  sub- 
orning witnesses  to  defame  her  character. 
There  are  several  causes  of  demurrer  as- 
signed by  the  defendants  which  go  to  the 
form  of  the  declaration,  and  which  re- 
main to  be  considered.  It  is  contended 
that  each  of  the  counts  is  defective,  be- 
causemore  than  one  cause  of  action  is  em- 
braced therein.  Each  count  alleges  that 
the  defendants  procured  and  suborned 
several  witnesses  named,  to  falsely  testi- 
fy to  defamatory  matter  concerning  the 
plaintiff.  The  defendants  argue  that,  if 
the  witnesses  were  sued,  theaction  against 

(See,  aUo,  Lamb  v.  Stone,  11  Pick.  526,  sfiven  in  full,  supra;  Randlette  v.  Judkins,  77  Me.  114; 
Adams  v.  Marshall,  13S  Mass.  228,  238;  Wilsan  v.  Dubois,  35  Minn.  471,  29  N.  W.  Rep.  68;  judgment 
of  Willes,  J.,  in  Bonomi  v.  Backhouse,  El.,  Bl.  &  El.  646;  Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503;  Dal- 
ton  v.  Angus,  L.  R.  6  App.  Cas.  740.) 


each  would  be  several,  and  not  joint, 
and  therefore,  if  the  defendants  are  liable, 
the  plaintiff  must  proceed  by  a  separate 
action  or  a  separate  count  for  suborning 
each  witness.  But  the  plaintiff's  cause  of 
action  is  that  the  defendants,  conspiring 
together,  entered  into  a  scheme  to  defame 
her,  and  carried  out  this  scheme  hy  a  se- 
ries of  connected  acts.  If  the  defendants 
had  suborned  but  one  witness,  the  plain- 
tiff might  have  had  a  cause  of  action; 
but,  having  suborned  several,  their  differ- 
ent acts  ma3'  be  alleged  to  have  been  all 
parts  of  one  scheme,  designed  and  carried 
out  to  defame  the  plaintiff,  and  but  one 
cause  of  action  is  set  out.  For  the  same 
reason  the  first,  third,  and  fourth  counts 
are  not  open  to  the  objection  of  duplicity, 
because  they  allege  that  the  defendants 
published  a  pamphlet  entitled  the  "Argu- 
ment of  W.  J.  Knight,  for  Plaintiff."  The 
publication  of  this  pamphlet  is  set  out  as 
one  of  the  acts  done  by  the  defendants  in 
carrjMng  out  the  conspiracy,  and  does  not 
set  out  a  libel  as  a  separate  cause  of  ac- 
tion. 

Another  ground  of  demurrer  is  that 
the  declaration  does  not  contain  any  alle- 
gation of  damage  sufficient  to  constitute  a 
legal  cause  of  action.  The  acts  charged  up- 
on the  defendants  aresuch  that  the  natural 
and  necessary  consequences  of  them  are 
to  injure  the  plamtiff.  Under  the  general 
allegation  of  damage,  she  may  recover 
damages  for  this  injury,  and  no  allegation 
of  special  damage  is  necessary  to  enable 
her  to  maintain  her  cause  of  action. 
Whether  under  the  declaration  she  can  re- 
cover for  injurj'  to  her  business  we  cannot 
consider  in  this  stage  of  the  case 

The  only  other  ground  of  demurrer  not 
considered  is  tliat  the  first  three  counts 
do  not  set  out  in  full  the  words  spoken  by 
the  suborned  witnesses,  or  a  copy  of  the 
printed  "Argument  of  \V.  J.  Knight,  for 
Plaintiff."  In  an  action  like  this,  it  is  not 
necessary  to  set  out  the  words  spoken  or 
written  with  the  fullness  required  in  ac- 
tions of  slander  and  libel,  but  it  is  suffi- 
cient to  .set  out  their  substance.  Hood  v. 
Palm,  8  Pa.  St.  237;  Haldeman  v.  Martin, 
10  Pa.  St.  369.  And  we  are  inclined  to  the 
opinion  that  the  first  three  counts  of  the 
plaintiff's  declaration  are  sufficient  in  this 
respect.  But  we  need  not  decide  this 
point,  as  the  fourth  count  sets  out  in  full 
the  testimony  of  the  suborned  witnesses 
and  a  copy  of  the  printed  pamphlet. 

Demurrer  overruled. 

Devexs  and  Lord,  .LT.,  absent. 


16 


LAW  OF  TORTS. 


Illustration  of  the  creation  of  legal  rights  by  statute. 


(78  N.  Y.  310.) 

Willy  v.  Mulledy. 

iCourt  of  Appeals  of  New  York.    Sept.  30, 1879. ) 

1.  Negligence— Statutort  Duty — Fire-Escapes. 
Laws  N.  Y.  1873,  c.  863,  tit.  13,  §  36,  which  re- 
quires the  owners  of  tenemeut-houses  to  provide 
them  with  fire-escapes,  etc.,  imposes  on  such  an 
owner  an  absolute  duty  for  the  benetit  of  his  ten- 
ants, and  he  Is  liable  for  a  breach  of  such  duty 
causing  damage  to  a  tenant. 

2.  Same — Contributory  Negligence. 

That  a  tenant  had  taken  rooms  in  such  a  house 
not  provided  with  a  fire-escape,  and  had  occupied 
them  for  a  few  days  previous  to  the  fire  causing 
the  injury  complained  of  by  him,  does  not  relieve 
the  owner  from  liability  therefor,  where  it  is 
not  shown  that  the  tenant  knew  there  was  no  fire- 
escape.  He  had  the  right  to  assume  that  the  stat- 
utory duty  had  been  performed,  and  owed  no  duty 
to  the  ovvner  to  make  an  examination  to  see 
whether  it  had  been  done. 

3.  Same— Evidence. 

In  such  a  case,  on  the  question  of  the  probabil- 
ity that  an  occupant  of  the  house,  whose  death 
was  caused  by  the  fire,  would  have  escaped  had 
there  been  a  fire-escape  as  i-equired  by  the  stat- 
ute, it  may  be  inferred  from  the  construction  of 
the  house  and  the  structure  of  fire-escapes  where 
one  would  probably  have  been  placed. 

4.  Same — Same. 

And  the  facts  that  such  person  knew  that  there 
was  a  scuttle  in  the  roof,  had  time  after  notice 
of  the  fire  to  reach  it,  and  made  efforts  to  escape, 
are  sufficient  to  justify  a  jury  in  finding  that  such 
person  tried  to  escape  in  that  direction,  and 
failed  for  want  of  a  ladder  to  the  scuttle,  which 
the  owner  had  not  provided  as  required  by  the 
statute. 

Appeal  from  city  court  of  Brooklyn,  gen- 
eral term. 

Action  by  Joseph  Willy,  as  administra- 
tor, etc.,  of  liis  wife,  against  Patrick  Mul- 
ledy, for  damages  for  the  death  of  plain- 
tiff's wife,  alleged  to  have  been  caused  by 
neglect  on  the  part  of  defendant.  Defend- 
ant appeals  from  a  judgment  of  the  gen- 
eral term  affirming  a  judgment  for  plaintiff 
entered  upon  a  verdict,  and  affirming  an 
order  denying  a  motion  for  a  new  trial. 

Thomas  E.  Pearsall,  for  appellant.  A. 
Simis,  Jr.,  for  respondent. 

Earl.  J.  This  Is  an  action  to  recover 
damages  for  the  death  of  plaintiff's  wife,  al- 
leged to  have  been  caused  by  the  fault  of 
the  defendant.  Prior  to  the  1st  day  of 
November,  1877.  the  plaintiff  hired  of  the 
defendant  certain  apartments  in  the  rear 
of  the  third  story  of  a  tenement-house  in 
the  city  of  Brooklyn,  and  with  his  wife 
and  infant  child  moved  into  them  on  that 
day.  On  the 5th  day  of  the  same  month,  in 
the  day-time,  a  fire  took  place,  originating 
in  the  lower  story  of  the  house,  and  plain- 
tiff's wife  and  child  were  smothered  to 
death. 

It  is  claimed  that  the  defendant  was  in 
fault  because  he  had  not  constructed  for 
the  house  afire-escape,  and  because  he  had 
not  placed  in  the  house  a  ladder  for  access 
to  the  scuttle.  Section  3(),  tit.  13,  c.  S(J3, 
Laws  1R73,  provides  that  every  building  in 
the  city  of  Brooklyn  shall  have  a  scuttle  or 
place  of  ejsress  in  the  roof  thereof  of  proper 
Hize;  and"shall  haveladders  or  stairways 
leading  to  the  same;  and  all  such  scuttles 


and  stairways  or  ladders  leading  to  the 
roof  shall   be  kept  in  readiness  for  use  at 
all  times."   It  also  provided  that  houses 
like  that  occupied  by  the  plaintiff  "shall  be 
provided  with  such  fire-escapes  and  doors 
as  shall   be  directed  and  approved  by  the 
commissioners  [of   the  department   of  fire 
and  buildings  ;]  and  the  owner  or  owners 
of    any    building    upon    which    any    fire- 
escapes   may  now  or  hereafter  be  erected 
shall   keep  the  same  in  good  repair,  and 
well   painted,  and   no  person  shall  at  any 
time  place  any  incumbrance   of  an^'  kind 
whatsoever  upon    said   fire-escapes    now 
erected,  or  that  may  hereafter   be  erected, 
in  the  city.     Any  f)erson,  after  being  noti- 
fied by  said  commissioners,  who  shall  neg- 
lect to    place   upon  any  such  building  tiie 
fire-escape  herein  provided  for, shall  forfeit 
the  sum  of  $.500,  and  shall  be  deemed  guilty 
of  a  misdemeanor."    Under   this  statute 
the  defendant  was  bound  to  provide  this 
house   with   a    fire-escai>e.      He   was  not 
permitted    to    wait   until  he  should  be  di- 
rected to  provide  one  by  the  commission- 
ers.    He  was    bound   to  do  it  in  such  way 
as  they  sliould   direct  and  approve,  and  it 
was  for  him  to  procure  their  direction  and 
approval.     No   penalty  is  imposed  for  the 
simple  omission  to  provide  one.     The  pen- 
alty can   be  incurred    only  for  the  neglect 
to   provide  one   after  notification   by  the 
commissioners.     Here  was.  then,  an  abso- 
lute duty  imposed  upon  the  nefendant  by 
statute  to   provide  a  fire-escape,  and  the 
duty  was  imposed  for  the  sole  benefit  of 
the  tenants   of   the   house,   so   that   they 
would  have  a  mode  of  escape  in  the  case  of 
afire.     For  a  breach  of  this  duty  causing 
damage,  it  cannot   be  doubted   that   the 
tenants   have  a  remedy.     It   is  a  general 
rule  that  whenever  one   owes   another   a 
duty,  whether  such   duty  be  imposed   by 
voluntarycontract  or  by  statute,  a  breach 
of  such  duty  causing  damage  gives  a  cause 
of  action.    Duty  and  right  are  correlative, 
and  where  a   duty  is  imposed  there  must 
be  a  right  to  have  it  performed.     When  a 
statute  imposes  a  duty  upon  a  public  offi- 
cer, it  is  well  settled  that  any  person  hav- 
ing  a   special  interest  in  the  performance 
thereof  may  sue  for  a  breach  thereof  caus- 
ing  him   damage,  and    the  same  is  true  of 
a  duty  imposed  by  statute  upon   any  citi- 
zen.    Cooley,   Torts,  G54;  Hover  v.  Bark- 
hoof,  44   N.  Y.  113:  Jetter  v.  Railroad  Co., 
2  Abb.  Dec.  4.5S;  Heenev    v.  Sprague,  11  R. 
I.  4.56;  Couch  v.  Steel,  3  El.  &    Bl.  402.     In 
Comyn's   Digest,  "  Action  upon    Statute," 
F,  it   is  laid   down   as   the   rule  that,  "in 
every  case  where  a  statute  enacts  or  pro- 
hibits  a  thing  for  the  benefit  of  a  person, 
he  shall  have  a  remedy  upon   the  same 
statute  for  the  thing  enacted  for  his  ad- 
vantage, or  for  the  recompense  of  a  wrong 
done   to   him   contrary   to  the  said  la  w.  " 
There  was   no   fire-escape   for   this  house. 
But  the  claim  is  made  on  behalf  of  this  de- 
fendantthat  he  is  ncjt  liable  in  this  action, 
because   the   plaintiff   and    his  wife  knew, 
when  they  moved  into  the  house  and  while 
they  occupied  the  same,  that  there  was  no 
fire-escaiie,  and    hence  that  they  volunta- 
rily took  the  hazard  of  its  absence.    It  is 


GENE  U  A  L  PRINCIPLES. 


17 


undonbtodly  true  that  the  plaintiff  could 
have  stii)uiate(l  at;ai:ist  ur  have  waived 
the  performance  of  this  duty  imposed  for 
his  benefit,  but  this  he  did  not  do.  There 
is  no  proof  of  any  kind  that  it  was  the  in- 
tention of  the  parties  entering  intf)  their 
contract  that  he  should  take  and  occupy 
this  house  without  a  (ire-escape.  There  is 
notliiny;  to  show  that  he  knew  there  was 
no  fire-escape  there  when  he  hired  the 
apartments.  It  is  not  shown  that  his  at- 
tention was  in  any  waj' called  to  the  matter 
or  that  he  looked  for  one.  Its  absence 
could  bediscovered  only  by  anexaminatiun 
outside  of  the  house,  and  there  is  no  evi- 
dence tiuit  he  made  such  examinatioji. 
He  had  the  rifj;ht  to  assume  that  the  stat- 
utory dutj'  had  been  performed.  There 
is  no  [)roof  that  during  his  occupancy  he 
discovered  the  absence  of  a  fire-escape.  He 
was  theie  but  three  days,  excluding;  Hie 
day  upon  which  he  moved  in  and  the  day 
upon  which  the  fire  occurred,  and  during 
that  time  it  does  not  appear  how  much  of 
the  time  he  was  in  the  house.  There  ia 
certainly  no  evidence  that  he  or  his  wife 
discovered  that  there  was  no  tire-escape, 
or  that  their  attention  had  been  called  to 
the  matter.  They  owed  no  duty  to  the 
defendant  to  look  and  see  whether  there 
was  one  there  or  not.  Thej'  had  the  right 
to  rely  upon  its  i)resence  there  as  recpiired 
by  the  statute.  But  suppose  they  did  dis- 
cover that  there  was  no  fire-escape  at 
some  time  while  there,  after  they  moved 
in,  does  such  discovery  absolve  the  defend- 
ant from  his  duty?  After  making  the  dis- 
covery, they  were  not  bound  at  once  to 
leave  the  house  and  go  into  the  street. 
They  had  a  reasonable  time  to  look  for 
and  move  into  other  apartments;  and  by 
remaining  for  such  reasonable  time  they 
waived  nothing;  and,  if  they  did  not 
choose  to  move  out,  they  were  entitled  to 
a  reasonable  time  to  find  the  defendant 
and  to  call  upon  him  to  furnish  the  fire- 
escape.  B3'  remaining  in  the  house  for  such 
reasonable  time  after  discovery  of  the 
breach  of  duty  on  the  part  of  the  defend- 
ant, it  could  not  be  said  as  matter  of  law 
that  they  waived  the  performance  thereof, 
or  took  upon  themselves  voluntarily  the 
hazard  of  all  the  damages  which  they 
might  sustain  by  the  nonperformance 
thereof.  The  duty  rested  upon  the  defend- 
ant not  solely  to  have  a  tire-escape  there 
when  the  plaintiff  leased  the  premises,  but 
it  continued  to  rest  upon  him  ;  and,  be- 
fore it  could  be  held  that  the  plaintiff  ab- 
solved him  in  any  way  from  this  duty,  the 
proof  should  l)e  clear  and  satisfactory. 
Here,  I  hold,  there  was  no  proof  whatever 
from  which  it  cf)uld  i)roi)erly  have  been 
found  that  he  did  so  absitlve  him. 

But  it  was  needful  for  the  plaintiff  to 
show,  not  only  that  there  was  tliis  breach 
of  duty,  but  that  the  death  of  plaintiff's 
wife  was  due  to  such  breach;  that  is,  that 
her  life  would  have  been  saved  if  there  had 
been  a  fire-escape  there.  It  is  reasonably 
certain  that  if  the  defendant  had  placed 
the  tire-escape  at  the  rear  of  thf  house, 
constructed  as  thej*  were  required  to  be, 
that  the  deceased  would  have  seen  it,  and 
made  her  escape,  as  it  would  have  been  at 
one  of  the  windows  of  the  rear  rooms 
which  she  occupied.  But  it  is  said  that 
CHASE — 2 


the  defendant  was  not  bound  to  place  the 
fire-escape  at  the  rear  of  his  house,  but 
that  he  could  have  placed  it  in  the  front 
of  ins  iKJUse,  and  that  if  he  had  placed  it 
there  she  could  not  have  escaped.  It  is 
probaldy  true  that  she  could  not  have 
escaped  from  the  front  of  the  house.  But 
tiiere  is  no  proof  where  fire-escapes  are 
usually  constructed,  nor  whether  the  front 
or  rear  of  this  particular  house  would 
have  been  the  more  suitable  place  for  the 
lire-f'scape.  I  think  we  may  assume  from 
the  manner  in  which  the  front  part  of  this 
house  was  c(jnstructed,  and  from  the 
structure  of  tire-escapes,  that  it  is  most 
proljable  that  it  would  have  been  placed  on 
the  rear  of  the  house.  We  think  upon  the 
whole  case  there  was  enough  to  authorize 
the  jury  to  find-  that  the  (leceased  would 
have  esca[)ed,  if  the  defendant  had  dis- 
charged ids  duty  as  the  law  required. 

Many  of  the  observations  already  made 
apply  to  the  ladder  for  the  scuttle.  The 
duty  to  furnish  and  keep  such  a  ladder 
was  imposed  mainly  for  the  benefit  of  the 
tenants.  It  was  the  intention  of  the  stat- 
ute that  they  shoidd  have  two  means  of 
escai)e  in  the  case  of  fire,  one  by  the  scut- 
tle and  another  by  the  fire-escai)e.  It  was 
the  duty  of  the  defendant  to  provide  a  lad- 
der, and  then  to  use  reasonable  care  to 
keep  it  thei-e  in  readiness  for  use.  The  de- 
fendant had  once  provided  a  ladder  for 
this  scuttle,  but  for  many  months  before 
this  fire  there  had  been  none  there.  This 
the  plaintiff  and  his  wife  did  not  kncjw. 
They  knew  where  the  scuttle  was,  and 
they  had  the  right  to  suppose  that  there 
was  a  ladder  to  reach  it,  as  the  law  re- 
quires. Hence  there  was,  or  at  least  the 
jury  had  the  right  to  find  that  there  was, 
a  l)reach  of  duty  in  this  respect.  But  the 
claim  is  also  made  as  to  this  that  there 
was  not  sufficient  evidence  to  authorize 
the  jury  to  find  that  the  breach  of  this 
duty  had  any  connection  with  the  death 
of  idain  tiff's  wife;  that  her  life  would  have 
l)een  saved  if  the  ladder  had  been  there. 
We  think  there  was.  The  evidence  was 
not  very  satisfactory.  It  is  true  that 
much  is  left,  from  the  necessity  of  the  case, 
to  the  weigliing  of  probabilities.  But  the 
jury  could  find  that  the  deceased  knew 
where  the  scuttle  was;  that  she  had  time 
aftfjr  notice  of  the  fire  to  reach  it ;  and  that, 
as  she  was  making  efforts  to  escape,  she 
probably  tried  to  escape  in  that  dii-ection, 
and  failed  for  want  of  the  ladder.  There 
was  sutticient  evidence,  therefore,  to  au- 
thorize a  verdict  for  tiie  plaintiff,  and  we 
do  not  think  the  jmlgment  should  be  re- 
versed for  other  errors  alleged. 

There  was  no  prejudicial  error  commit- 
ted bj'  the  judge  at  the  trial  in  receiving  a 
copy  of  the  printed  specifications  adopted 
by  the  commissioners,  as  to  the  material 
and  manner  of  constructing  tire-escapes. 
I  think  the  evidence  was  wholly  immate- 
rial and  harmless.  The  defendant  was 
not  charged  with  not  building  a  fii'e- 
(>scaiie  according  to  thcjse  specifications, 
but  with  wholly  neglecting  to  l)uild  any. 
It  was  his  duty  to  build  one,  and  to  ai)ply 
to  the  commissioners  for  their  directions 
and  approval;  and  that  they  had  adopt- 
ed certain  specifications  of  which  he  would 
have  been  informed  if  he  had  called  upon 


18 


LAW  OF  TORTS. 


them  is  of  no  account  and  had  no  possible 
bearing  upon  the  result  of  the  trial.  The 
court  did  charge  in  substance  as  requested 
that  the  defendant  was  not  liable  unless 
the  evidence  established  the  fact  that  the 
deceased  made  an  effort  to  escape  through 
the  scuttle  and  was  prevented  from  so 
doing  by  tlie  absence  of  the  ladder.  It 
was  not  error  to  refuse  to  charge  that  if 
the  plaintiff  and  his  wife  knew  that  there 
was   no  tire-escape  then  they  could  not  re- 


cover. There  was  no  evidence  from  which 
the  jury  could  properly  find  that  they 
knew  this  when  they  hired  the  premises; 
and  if  they  learned  it  afterwards  for  rea- 
sons above  stated  it  would  not  necessarily 
follow  that  the  plaintiff  could  not  recover. 
Other  allegations  of  error  have  been  con- 
sidered and  are  found  to  be  withoiit  sub- 
stance. The  judgment  must  be  affirmed 
with  costs.  All  concur. 
Judgment    affirmed. 


(See,  also,  Baxter  v.  Doe,  142  Mass.  558,  8  N.  E.  Rep.  415;  Pickering  v.  James,  L.  R.  8  C.  P.  489. 
For  the  limitations  of  the  doctrine,  see  Dudley  v.  Mavhew,  3  N.  Y.  9;  Grant  v.  Power  Co.,  14  R.  I.  380; 
Atkinson  v.  Water-Works  Co.,  2  Exch.  Div.  441;  Gorris  v.  Scott,  L.  R.9  Exch.  125.) 


Injuria  sine  damno  gives  a  right  of  action. 


(34  Wend.  ISS.) 

Dixo.N  V.  Clow. 

(S^ipreme  Court  of  New  York.    May,  1840.) 

Easements — Extent  of  Right  —  Nominal  Dam- 
ages. 
One  having  an  easement  in  land  of  another  is 
liable  for  any  injury  to  the  land  wantonly  and  un- 
necessarily done  by  him  in  the  use  of  his  priv- 
ileges; and  if  he  commits  an  unauthorized  tres- 
pass on  the  land,  the  landowner  may  recover  dam- 
ages therefor,  although  he  does  not  prove  any 
particular  amount  of  damages  sustained  by  him. 

Error  from  Cayuga  common  pleas. 

Action  of  trespass  quare  clausum  fre^it, 
brought  by  Dixon  against  Clow,  for  break- 
ing and  entering  plaintiff's  close  on  sev- 
eral occasions,  pulling  down  fences,  etc. 
Defendant  justified  under  an  alleged  grant 
for  a  ditch  or  water-course  over  plaintiff's 
land.  It  appeared  that,  in  1832,  plaintiff 
liad,  by  deed,  in  consideration  of  !f200, 
conveyed  in  fee  to  one  Garlick,  whose  title 
was  afterwards  acquired  by  defendant,  a 
piece  of  land,  with  the  right  to  take  water 
from  a  stream  which  ran  througli  plain- 
tiff's farm,  for  water-works  to  be  con- 
structed on  the  land  conveyed;  the  water 
to  be  carried  about  half  a  mile  over  plain- 
tiff's land,  in  a  ditch,  the  course  of  which 
was  specified,  and  which  was  to  be  not 
mure  than  six  feet  wideatthebottora,  and 
the  grant  being  made  subject  to  the  rights 
of  the  state  in  a  feeder  to  tiie  Erie  canal. 
There  was  evidence  of  acts  of  defendant,  in 
entering  on  the  land  and  constructing  and 
repairing  the  ditch,  which  exceeded  theau- 
thority  conferred  by  thegrant;  but  it  was 
not  shown  that  plaintiff  had  sustained 
any  particular  amount  of  damages. 
Plaintiff  requested  instructions  to  the 
jui-y,  as  follows:  (1)  That  the  grant  only 
gave  the  right  to  enter  on  plaintiff's  land 
for  the  purpose  of  digging  and  repairing 
the  ditch;  (2)  that  plaintiff  had  the  right 
to  include  the  ditch  in  fencing  his  fields, 
and  that  defendant  had  no  right  tore- 
move  the  fences  except  when  it  was  neces- 
sary to  enter  with  teams,  restoring  the 
fences  again  when  the  repairs  were  made; 
(3)  that  defendant  had  no  right  to  an 
open  way  along  the  water-course;  (4) 
that  the  jury  had  a  right  to  presume  dam- 
ages from  the  acts  proved.  The  court  re- 
fused so  to  charge,  and  instructed  the  jury 
that  they  doubted  much  whether  the  jury 
could  find  a  verdict   for  plaintiff,  when   he 


not  only  had  not  proved  anysum  as  dam- 
ages in  consequence  of  the  defendant's  acts, 
but,  upon  inquiry  by  the  court,  his  coun- 
sel had  answered  that  he  did  not  intend 
to  offer  any  proof  of  the  amount  of  dam- 
ages. The  court  also  charged,  on  the  sub- 
ject of  the  grant,  that  Garlick  and  his  as- 
signs had  the  full  right  to  enter  upon  the 
premises  described  in  the  deed,  along  the 
course  of  the  ditch,  for  constructing  and 
repairing  it,  and  that  plaintiff  had  no 
right  to  build  any  fence  that  should  run 
across  the  bank  and  the  ditch,  thereby 
obstructing  the  defendant  from  free  access 
to  the  ditch,  up  and  down  it,  for  such 
purpose,  that,  if  he  had  a  right  to  build 
any  fence,  he  might  build  a  stone  wall,  and 
then  defendant  could  not  get  to  his  ditch 
to  repair  it;  and  that  defendant  had  a 
right  to  go  along  the  line  of  his  ditch 
without  obstruction  for  the  purpose  afore- 
said. Plaintiff  excepted  to  thecharge  and 
to  the  refusal  to  charge  as  requested. 
The  jury  found  a  venlict  for  defendant, 
and  plaintiff  brought  error. 

J.  Porter,  for  plaintiff  in  error.  A. 
Gould,  for  defendant  in  error. 

Bronson,  J.  The  defendant  has  an  ease- 
ment in  the  plaintiff's  land,  and  must  be 
allowed  to  enjoy  it  in  such  a  manner  as 
will  secure  to  him  all  the  advantages  con- 
templated by  the  grant.  But  he  must  so 
use  his  own  privileges  as  not  to  do  any 
unnecessary  injury  to  the  plaintiff.  It  is 
evident  from  the  prior  right  of  the  state, 
the  small  amount  of  consideration  in  the 
deed,  and  the  capacity  of  the  ditch,  so  far 
as  it  has  beenconstructed,thatonly  a  very 
small  quantity  of  water  was  to  be  con- 
ducted over  the  plaintiff's  laud  ;  and  that 
the  "  water- works  "  or  machinery  to  be 
erected  on  the  defendant's  lot  were  of  no 
great  extent  or  importance.  I  cannot 
think  that  a  reasonable  construction  of 
this  grant,  which,  in  effect,  gives  the  de- 
fendant an  unobstructed  right  of  way 
along  the  ditch,  and  compels  the  plaintiff 
either  to  throw  open  his  fields,  or  to  erect 
a  fence  on  both  sides  of  the  canal  for  the 
whole  distance  of  half  a  mile  that  it  passes 
over  his  land.  If  the  plaintiff  may  include 
the  ditch  in  his  fields,  by  extending  across 
the  banks  a  fence  which  can  easily  be  re- 
moved in  case  of  necessity,  it  does  not  fol- 
low that  he  can  build  a  stone  wall  which 
will  wholly  exclude  the  defendant  from  hia 


GENERAL  PRINCIPLES. 


19 


water-course.  The  court  held  that  the 
plaintiff  had  no  rij>:ht  to  build  any  fence 
that  should  run  atrross  the  bank.  I  can- 
not see  that  this  is  a  nece.ssary  conclusion 
of  law  on  the  facts  detailed  in  the  bill  of 
exceptions.  The  case  should,  I  think, 
have  been  submitted  to  the  jurj'  to  say 
whether  the  acts  of  which  the  plaintiff 
complains  were  necessary  to  the  enjoy- 
ment of  the  defendant's  privileges,  or 
whether  he  acted  wantonly,  and  did  an 
unnecessary  injury  to  the  plaintiff. 

2,  If  the  plaintiff  succeeded  in  showing 
an  unlawful  entry  upon  his  land,  or  that 
his  fences  or  any  portion  of  them  were  im- 
properly thrown  down  and  his  fields  ex- 
posed, he  was  entitled  to  a  verdict  for 
nominal  damages  at  the  least.  It  was 
not  necessary  for  him  to  prove  a  sum,  or 
that  anj'  particular  amount  of  damages 
had  been  sustained  ;  and  the  charge  was 
in  this  respect  improper.  From  the  plead- 
ings and  the  course  of  the  trial,  it  is  evi- 
dent that  the  action  was  brought  for  the 
purpose  of  trying  the  extent  of  the  defend- 
ant's right.  It  is  suggested,  and  is  prob- 
ably true,  that  a  suit  was  first  commenced 
in  a  justice's  court,  where  the  defendant 
pleaded  title,  and  thus  made  it  necessary 
for  the  plaintiff  to  sue  in  the  common 
pleas.  But,  however,  that  fact  may  be, 
everj'  unauthorized  entry  upon  the  land 
of  another  is  a  trespass,  and,  whether  the 
owner  suffer  much  or  little,  he  is  entitled 
to  a  verdict  for  some  damages. 

Judgment  reversed. 


(3  Sumn.  189.) 

Webb  v.  Portland  Manuf'g  Co. 

(U".  S.  Circuit  Court,  D.  Maine.  May  Term,  1S38.) 

i.  Violation  of  Right  without  Actual  Dajiage. 

To  sustain  an  action,  where  there  is  a  clear  vio- 
lation of  a  right,  it  is  not  necessary  to  show  act- 
ual damage;  every  such  violation  imports  dam- 
age; and  plaintiff  is  entitled  to  nominal  dam- 
ages, if  no  other  be  proved,  ji  foHiori  this  doc- 
trine applies  when  the  act  done  is  such  that,  by 
its  repetition  or  continuance,  it  may  become  the 
foundation  or  evidence  of  an  adverse  right;  and, 
in  such  a  case,  a  court  of  equity  will  interpose 
by  injunction  to  restrain  such  injurious  act,  when 
the  remedy  at  law  is  inadequate  to  prevent  and 
redress  the  mischief. 
.  3.  DivEKSiox  OF  Water-Course — Injitnction. 

Plaintiff  and  defendants  severally  owned  differ- 
ent mills  and  mill  privileges  at  the  same  mill- 
dam.  Defendants  drew  water  for  the  supply  of 
one  of  their  mills  from  the  head  of  the  mill-pond, 
and  afterwards  returned  the  water  into  the  stream 
below  the  dam.  The  water  so  withdrawn  was 
much  less  than  the  amount  to  which  defendants 
were  entitled  at  the  dam.  Held,  that  plaintiff 
was  entitled,  not  merely  to  his  proportion  of  the 
water  in  the  pond,  but  to  his  proportion  of  the 
whole  stream  at  the  dam,  undivided  and  undi- 
minished in  its  natural  flow,  and  defendants 
should  be  restrained  by  injunction  from  the  di- 
version of  eveu  a  part  thereof  less  than  their 
I)roportion;  and  that  it  was  no  answer  to  plain- 
tiff's bill  therefor  that  defendants  had  improved 
the  supply  of  water  to  the  pond  by  a  reservoir 
higher  up  the  stream. 

In  equity.  On  bill  for  injunction. 
Bill  in  equity  by  Joshua  Webb  against 
the  Portland  Manufacturing  Company  to 
restrain  the  diversion  of  water  from  plain- 
tiff's mill.  On  the  stream  on  which  the 
mill  was  situated  were  two  dams,  the  dis- 
tance between  which   was  about  40  or  50 


!  rods,  occupied  by  the  mill-pond  of  the 
lower  dam.     Plaintiff  owned  certain  mills 

[and   mill    privileges   on   the    lower    dam. 

j  Defendants  also  owned  certain  other  mills 

I  and  mill  privileges  on  the  same  dam.  To 
supply  water  to  one  of  such  mills,  defend- 
unt.s  made  a  ranal  from  the  pond  at 
a  point  immediately  below  the  upper 
dam.  The  water  thus  withdrawn  by 
them  for  that  purpose  was  about  one- 
fourth  of  the  water  to  which  defendants 
were  entitled  as  mill-owners  on  the  lower 
dam,  and  was  returned  into  the  stream 
immediately  below  that  dam.  A  prelimi- 
nary question,  suggested  by  the  court, 
was  arirued  on  the  bill  and  answer. 

C.  S.  Daveis,  for  plaintiff.  P.  Melleo  and 
Mr.  Longfellow,  for  defendants.      > 

Story,  J.  The  question  which  has  been 
argued  upon  the  suggestion  of  the  court 
is  of  vital  importance  in  the  cause,  and,  if 
decided  in  favor  of  the  plaintiff,  it  super- 
sedes man3'  of  the  inquiries  to  which  our 
attention  must  otherwise  be  directed.  It 
is  on  this  account  that  we  thought  it 
proper  to  be  argued  separately  from  the 
general  merits  of  the  cause. 

The  argument  for  the  defendants,  then, 
presents  two  distinct  questions.  The  first 
Is  whether,  to  maintain  the  present  suit, 
it  is  essential  for  the  plaintiff  to  establish 
any  actual  damage.  The  second  is  wheth- 
er, in  point  of  law,  a  mill-owner,  having 
a  right  to  a  certain  portion  of  the  water 
of  a  stream  for  the  use  of  his  mill  at  a  par- 
ticular dam,  has  a  right  to  draw  off  the 
same  portion  or  any  less  quantity  of  the 
water,  at  a  considerable  distance  above 
the  dam,  without  the  consent  of  the  own- 
ers of  other  mills  on  the  same  dam.  In 
connection  with  these  questions,  the 
point  will  also  incidentally  arise  whether 
it  makes  any  difference  that  such  drawing 
off  of  the  water  above  can  be  shown  to 
be  no  sensible  injury  to  the  other  mill- 
owners  on  the  lower  dam. 

As  to  the  first  question,  I  can  very  well 
understand  that  no  action  lies  In  a  case 
where  there  is  dnmniim  absque  injuria; 
that  is,  where  there  is  a  damage  done 
without  any  wrong  or  violation  of  any 
right  of  the  plaintiff.  But  I  am  not  able 
to  understand  how  it  can  correctly  be 
said,  in  a  legal  sense,  that  an  action  will 
not  lie,  even  in  case  of  a  wrong  or  viola- 
tion of  a  right,  unless  it  is  followed  by 
some  perceptible  damage,  which  can  be  es- 
tablished as  a  matter  of  fact;  in  other 
w(jrds,  that  injuria  sine  dnmno  is  not  ac- 
tionable. See  Mayor  of  Lynn,  etc.,  v. 
Mayor  of  London,  4'  Term  R.  130,  141,  143, 
144;  Com.  Dig.  "Action  on  the  Case,"  B  1, 
2.  On  the  contrary,  from  my  earliest 
reading,  I  have  considered  it  laid  up 
among  the  very  elements  of  the  common 
law  that  wherever  there  is  a  wrong  there 
is  a  remedy  to  redress  it;  and  that  every 
injur.v  imports  damage  in  the  nature  of 
it ;  and,  if  no  other  damage  is  established, 
the  party  injured  is  entitled  to  a  verdict  for 
nominal  damages.  A  fortiori  this  doc- 
trine applies  where  there  is  not  only  a  vio- 
lation of  a  right  of  the  plaintiff,  but  the 
act  of  the  defendant,  if  continued,  may  be- 
come the  foundation,  by  lapse  of  time,  of 
an  adverse  right  in  the    defendant;  for 


20 


LAW  OF  TORTS. 


then  it  assumes  the  character,  not  merely 
of  a  violation  of  a  rijjjht  tendinjr  to  dimin- 
ish its  value,  l)ut  it  j;oes  to  the  absolute 
destruction  and  extinguishment  of  it.  Un- 
der such  circumstances,  unless  the  party 
injured  can  protect  his  right  from  such  a 
violation  by  an  action,  it  is  plain  that  it 
may  be  lost  or  destroyed,  without  any 
possible  remedial  redress.  In  my  judg- 
ment, the  common-law  countenances  no 
such  inconsistency,  not  to  call  it  by  a 
stronger  name.  Actual,  perceptible  dam- 
age is  not  indispensable  as  the  foundation 
of  an  action.  The  law  tolerates  no  fur- 
ther inquiry  tlian  whether  there  has  been 
the  violation  of  a  right.  If  so,  the  party 
injured  is  entitled  to  maintain  his  action 
fur  nominal  damages,  in  vindication  of 
His  right,  if  no  other  damages  are  tit  and 
uroper  to  remunerate  him.  So  long  ago 
as  the  great  case  of  Ashby  v.  White,  2  L,d. 
Raym.  938,  6  Mod.  45,  Holt,  524,  the  ob- 
jection was  put  forth  by  some  of  the 
judges,  and  was  answered  by  Lord  Holt, 
with  his  usual  ability  and  clear  learning; 
and  his  judgment  was  supported  by  the 
house  of  lords,  and  that  of  his  brethren 
overturned.  By  the  favor  of  an  eminent 
judge.  Lord  Holt's  opinion,  apparently 
copied  from  his  own  manuscript,  has  been 
recently  printed.  In  this  last  printed 
opinion  (page  14)  Lord  Holt  says:  "It  is 
impossible  to  imagine  any  such  thing  as 
^njuria  sine  dainuo.  Every  injury  imports 
damage  in  the  nature  of  it."  S.  P.  2  Ld. 
Raym.  R.  955.  And  Iv^  cites  many  cases  in 
support  of  his  position.  Among  these  is 
Starling  v.  Turner,  2  Lev.  50,  2  Vent.  25, 
where  the  plaintiff  was  a  candidate  for 
the  office  of  bridge-master  of  London 
bridge,  and  the  lord  mayor  refused  his  de- 
mand of  a  poll,  and  it  was  determined 
that  the  action  was  maintainable  for  the 
refusal  of  the  poll.  Although  it  might 
have  been  that  the  plaintiff  would  not 
have  been  elected,  the  action  was  never- 
theless maintainalDle;  for  the  refusal  was 
a  violation  of  the  plaintiff's  right  to  be  a 
candidate.  So  in  the  case  cited,  as  from 
28  Edw.  III.  IS, tit.  "Defense,"  (it  is  a  mis- 
take in  the  MS.,  and  snould  be  29  Edw.  III. 
18Z>;  Fitz.  Abr.  tit.  "Defense,"  pi.  5,) 
and  11  Hen.  IV.  47,  where  the  owner  of  a 
market,  entitled  to  toll  upon  all  cattle 
sold  within  the  market,  brought  an  action 
against  the  defendant  for  hindering  a  per- 
son from  going  to  the  market  with  the  in- 
tent to  sell  a  horse,  it  was,  on  the  like 
ground,  held  maintainable;  for  though 
the  horse  might  not  have  been  sold,  and 
no  toll  would  have  become  due,  yet  the 
hindering  the  i)laintiff  from  the  possibili- 
ty of  having  toll  was  such  an  injurj-  as  did 
import  such  damage,  for  which  the  plain- 
tiff ought  to  recover.  So  in  Hunt  v.  Dow- 
man,  Cro.  Jac.  478,  2  Rolle,  21,  where  the 
lessor  brought  an  action  against  the  les- 
see for  disturbing  him  from  entering  into 
the  house  leased,  in  order  to  view  it,  and 
to  see  whether  any  waste  was  commit- 
ted; and  it  was  held  that  the  action  well 
lay,  though  no  waste  was  committed  and 
no  actual  damage  done,  for  the  lessor  had 
a  right  so  to  enter,  and  the  hindering  of 
him  was  an  injury  to  that  right,  for  which 
he  might  maintain  an  action.  So  Herring 
V.   Finch,  2  Lev.  250,  where  it  was  held 


that  a  person  entitled  to  vote,  who  was 
refused  his  vote  at  an  election,  might  well 
maintain  an  action  therefor,  although  the 
candidate,  for  whom  he  might  have  vot- 
ed, might  not  have  been  chosen,  and  the 
voter  could  not  sustain  any  perceptible  or 
actual  damage  by  such  refusal  of  his  vote. 
The  law  gives  the  remedy  in  such  case,  for 
there  is  a  clear  violation  of  the  right. 
And  this  doctrine,  as  to  a  violation  of  the 
right  to  vote,  is  now  incontrovertibly  es- 
tablished; and  yet  it  would  beimpracCica- 
ble  to  show  any  temporal  or  actual  dam- 
age thereby.     See   Harman  v.  Tappenden, 

1  East,  555;  Drewe  v.  Coulton,  Id.  503, 
note;  Kilham  v.  Ward,  2  Mass.  230;  Lin- 
coln V.  Hapgood,  11  Mass.  350;  2  Vin.  Abr. 
"Action,  Case,"  note  c,  pi.  3.  In  the 
case  of  Ashby  v.  White,  as  reported  by 
Lord  Raymond,  (2  Ld.  Raym.  953,)  Lord 
Holt  said:  "If  the  plaintiff  has  a  right, 
he  must  of  necessity  have  a  means  to  vin- 
dicate and  maintain  it.  and  a  remedy,  if 
he  is  injured  in  the  exercise  or  enjoyment 
of  it;  and,  indeed,  it  is  a  vain  thing  to 
imagine  a  right  without  a  remedy;  for 
want  of  right  and  want  of  remedy  are  re 
ciprocal."     S.  P.  6  Mod.  53. 

The  principles  laid  down  by  Lord  HoLi 
are  so  strongly  commended,  not  only  by 
authority,  but  by  the  common  sense  and 
common  justice  of  mankind,  that  they 
seem  absolutely,  in  a  judicial  view,  incon- 
trovertible. And  they  have  been  ftiUy 
recognized  in  many  other  cases.  Th& 
note  of  Mr.  Sergeant  Williams  to  Mellor  v. 
Spateman,  1  Saund.  MGa,  note  2;  Wells 
V.  Watling,  2  W.  Bl.  1233;  and  the  case  of 
the  Tunbridge  Dippers,  (  Weller  v.  Baker,.* 

2  Wils.  414, — are  direct  to  the  purpose.  1 
am  aware  that  some  of  the  old  cases  incul- 
cate a  different  doctrine,  and  perhaps  are 
not  reconcilable  with  that  of  Lord  Holt, 
There  are  also  some  modern  cases  which 
at  first  view  seem  to  the  contrary.  But 
they  are  distinguishable  from  that  now  in 
judgment;  and,  if  they  were  not,  ego  as- 
sentior  scsp.volos.  The  case  of  Williams  v. 
Morland,  2  Barn.  &  C.  910,  seems  to  have 
proceeded  upon  the  ground  that  there  was 
neither  any  damage  nor  any  injury  to  the 
right  of  the  plaintiff.  Whether  that  case 
can  be  supported  upon  principle  it  is  not 
now  necessary  to  say.  Some  of  the  dicta 
in  it  have  been  subsequently  impugned, 
and  the  general  reasoning  of  the  judges 
seems  to  admit  that,  if  any  right  of  the 
plaintiff  had  been  violated,  the  action 
would  have  lain.  The  case  of  Jackson  v. 
Pesked,  1  Maule  &  S.  235,  turned  upon  the 
supposed  defects  of  the  declaration,  as  ap- 
plicable to  a  mere  reversionary  interest,  it 
not  stating  any  act  done  to  the  prejudice 
of  that  reversionary  interest.  I  do  not 
stop  to  inquire  whether  there  was  not  an 
over.'iicety  in  the  api)lication  of  the  tech- 
nical principles  of  ple.'iding  to  that  case, 
although,  notwithstanding  the  elaborate 
opinion  of  Lord  Ellenborough,  one  might 
be  inclined  to  pause  upon  it.  The  case  of 
Young  V.  Spencer.  10  Barn.  &  C.  145, 
turned  also  upon  the  point  whethei' any 
injurj'  was  done  to  a  reversionary  inter- 
est. I  confess  myself  better  pleased  with 
the  ruling  of  the  learned  judge  (Mr.  Jus- 
tice Bayley)  at  the  trial  than  with  the 
decision   of  the  court  in   granting  a  new 


GEXERAI.  PRINCIPLES. 


21 


trial.  But  the  court  admitted  that,  if 
there  was  anj'  injury  to  tlie  reversionary' 
right,  the  action  would  lie;  and,  although 
there  might  be  no  actual  damage  proved, 
yet,  if  anything  done  by  the  tenant  would 
destroy  the  evidence  of  title,  the  action 
was  maintainable.  A  fortiori,  the  action 
must  have  been  held  maintainable,  if  the 
act  done  went  to  destroy  the  existing 
right,  or  to  found  an  advcM'se  right. 

On  the  other  haTid,  Marzetti  v.  Williams, 
1  Barn.  &  Adol.  415.  goes  the  whole  length 
of  Lord  Hoi/r's  doctrine;  for  there  the 
plaintiff  recovered,  notwithstanding  no 
actual  damage  was  proved  at  the  trial; 
and  Mr.  .)  usticeT.vu.NTOx  on  that  occasion 
cited  niany  authorities  to  show  that 
where  a  wi-cuig  is  done,  by  which  the  right 
of  the  party  may  be  injured,  it  is  a  good 
cause  of  action,  although  no  actual  dam- 
age be  sustained.  In  Hobson  v.  Todd,  4 
Term  E.  71,  73,  the  court  decided  the  case 
upon  the  very  distinction,  which  is  most 
material  to  the  present  case,  that  if  a 
commoner  might  ncjt  maintain  an  action 
for  an  injury,  however  small,  to  his  right. 
a  mere  wrong  doer  might,  by  repeated 
torts,  in  the  course  of  time  establish  evi- 
dence of  a  right  of  common.  The  same 
principle  was  afterwards  recognized  bj' 
Mr.  Justice  Guose,  in  Pindar  v.  ^^  ads- 
worth,  2  East,]G2.  But  the  case  of  Bower 
V.  Hill.  1  Bing.  N.  C.  54U,  fully  sustains  the 
doctrine  for  which  I  contend;  and,  indeed, 
a  stronger  case  of  its  applii-ati(m  cannot 
wf^ll  be  imagined.  There  the  court  held 
that  a  permanent  obstruction  to  a  nav- 
igable drain  of  the  plaintiff's,  though 
choked  up  with  mud  for  16  years,  was  ac- 
tionable, although  the  plaintiff  received 
no  immediate  damage  thereby  ;  for,  if  ac- 
quiesced in  for  20  years,  it  would  become 
evidence  of  a  renunciation  and  abandon- 
ment of  the  right  of  wav.  The  case  of 
Blanchard  v.  Baker,  8  Greenl.  253,  208,  rec- 
ognizes the  same  doctrine  in  the  most  full 
and  satisfactory  manner,  and  is  directly  in 
point;  for  it  was  a  case  for  diverting  wa- 
ter from  the  plaintiff's  mill.  I  should  be 
sorry  to  have  it  supposed  for  a  moment 
that  Tyler  v.  Wilkinson,  4  Mason,  397,  im- 
ported a  different  doctrine.  On  the  con- 
trary, I  have  always  considered  it  as  pro- 
ceeding upon  the  same  doctrine. 

Upon  the  whole,  without  going  further 
into  an  e.'camination  of  the  authorities  on 
this  subject,  my  judgment  is  that,  when- 
ever thei-e  is  a  clear  violation  of  a  right, 
it  is  not  necessary  in  an  action  of  this 
sort  to  show  actual  damage;  that  every 
violation  imports  damage;  and,  if  no  oth- 
er be  proved,  the  plaintiff  is  entitled  to  a 
verdict  for  nominal  damages;  and  a  for- 
tiori that  this  doctrine  applies  whenever 
the  act  done  is  of  such  a  nature  as  that  by 
its  repetition  or  continuance  it  may  be- 
come the  foundation  or  evidence  of  an  ad- 
verse right.  See,  also.  Mason  v.  Hill,  3 
Barn.  &  Adol.  304,  5  Barn.  &  Adol.  1. 
But  if  the  doctrine  were  otherwise,  and  no 
action  were  maintainable  at  law,  without 
proof  of  actual  damage,  that  would  fur- 
nish no  ground  why  a  court  of  equity 
should  not  interfere,  and  protect  such  a 
right  from  violation  and  invasion;  for,  in 
a  great  variety  of  cases,  the  very  ground 
of  the  interposition  of  a  court  of  equity  is 


that  the  injury  done  is  irremediable  at 
law,  and  that  the  right  can  only  be  i  er- 
manently  preserved  or  perpetuated  by 
the  powers  of  a  court  of  equity.  And  one 
of  the  most  ordinary  processes  to  accom- 
plish this  end  is  by  a  writ  of  injunction, 
the  nature  and  efficacy  of  which  for  such 
puri)ose  I  need  not  state,  as  the  ele- 
mentary treatises  fully  expound  them. 
See  Eden,  Inj.;  2  Story,  Eq.  Jur.  c.  23,  §§ 
SH-S)59 ;  Bolivar  Manuf'g  Co.  v.  Neponset 
Manuf'g  C(j.,  1(J  Pick.  241.  If,  then,  the  di- 
version of  water  complained  of  in  the 
present  case  is  a  violation  of  the  right  of 
the  plaintiff,  and  may  permanently  in- 
jure that  right,  and  become,  by  lapse  of 
time,  the  foundation  of  an  adverse  right 
in  the  defendants,  I  know  of  no  more  lit 
case  for  the  interposition  of  a  court  of  eq- 
uity, by  way  of  injunction,  to  restrain  the 
defendants  from  such  an  injurious  act.  If 
there  be  a  remedy  for  the  plaintiff  at  law 
for  damages,  still  that  remedy  is  inade- 
quate to  prevent  and  redress  the  mischief. 
If  there  be  no  such  remedy  at  law,  then,  a 
fortiori,  a  court  of  equity  ought  to  give 
its  aid  to  vindicate  and  perpetuate  the 
right  of  the  plaintiff.  A  court  of  equity 
will  not,  indeed,  entertain  a  bill  for  an  in- 
jiinction  in  case  of  a  mere  trespass  fully 
remediable  at  law.  But,  if  it  might  occa- 
sion irreparable  mischief  or  permanent 
injury,  or  desti'oy  a  right,  that  is  the  ap- 
pi-opriate  case  for  such  a  bill.  See  2  Story, 
Eq.  Jur.  §§  92G-y2S,  and  the  cases  there 
cited;  Jerome  v.  Ross,  7  John.  Ch.  315; 
Van  Bergen  v.  Van  Bergen,  3  John.  Ch.  282; 
Turnpike  Road  v.  Miller,  5  John.  Ch.  101; 
(Gardner  V.  Villageof  Newburgh,  2  John.Ch. 
162. 

Let  us  come,  then,  to  the  only  remain- 
ing question  in  the  cause,  and  that  is 
Avhether  any  right  of  the  plaintiff,  as  mill- 
owner  on  tlie  lower  dam,  is  or  will  be 
violated  by  the  diversitjn  of  the  water  by 
the  canal  of  the  defendants.  And  here  it 
does  not  seem  to  me  that,  upon  the  pres- 
ent state  of  the  law,  there  is  any  real 
ground  for  controversy,  although  there 
were  formerly  many  vexed  iiuestions,  and 
much  contrariety  of  opinion.  The  true 
doctrine  is  laid  down  in  Wright  v.  How- 
ard, 1  Sim.  &  S.  190,  b3'  Sir  John  Le.\ch.  in 
regard  to  riparian  proprietors,  and  his 
opinion  has  since  been  deliberately  adopt- 
ed bv  the  king's  bench.  Mason  v.  Hill,  3 
Bani.  &  Adol.  304,  5  Barn.  &  Adol.  1.  See. 
also,  Bealey  v.  Shaw,  6  East.  208.  "Fiima, 
facie,"  says  that  learned  judge,  "the  pro- 
prietor of  each  bank  of  a  stream  is  the 
proprietor  of  half  the  land  covered  by  the 
stream;  but  there  is  no  property  in  the 
water.  Every  proprietor  has  an  ecjual 
right  to  use  the  water  which  flows  in  the 
stream;  and  consequently  no  proprietor 
can  have  the  right  to  use  the  water  to  the 
\  rejudice  of  anj-  other  proprietor,  without 
the  consent  of  the  other  pnjprietors  who 
may  be  affected  by  his  operations.  No 
proprietor  can  either  diminish  the  quanti- 
ty of  water  which  would  otherwise  de- 
scend to  the  propriet«)rs  below, nor  thi-ow 
the  water  back  upon  the  proprietors 
above.  Every  proprietor,  who  claims  a 
right  either  to  throw  the  water  back 
above  or  to  diminish  the  quantity  of  wa- 
ter which  is  to  descend  below,  must,  in  or- 


22 


LAW  OF  TORTS. 


der  to  maintain  his  claim,  either  prove  an 
actual  grant  or  license  from  the  proprie- 
tors affected  by  his  operations,  or  must 
prove  an  uninterrupted  enjoyment  of 
twenty  years,  which  cerm  of  twenty  years 
is  now  adopted  upon  a  principle  of  gen- 
eral couvenience,  as  affording  conclusive 
presumption  of  a,  grant."  Tlie  same  doc- 
trine was  fully  recognized  and  acted  upon 
in  the  case  of  Tyler  v.  Wilkinson,  4  Ma- 
eon,  397,  400-402;  and  also  in  the  case  of 
Blanchard  v.  Baker,  8  Greenl.  253,  2m.  Jn 
the  latter  case  the  learned  judge  (Mr.  Jus- 
tice Weston)  who  df.'livered  the  opinion  of 
the  court,  used  the  folio  wing  emphatic 
language:  "The  right  to  the  use  of  a 
stream  is  incident  or  appurtenant  to  the 
land  through  which  it  passes.  It  is  an 
ancient  and  well-established  principle  that 
it  cannot  be  lawfully  diverted,  unless  it 
is  returned  again  to  its  accustomed  chan- 
nel, before  it  passes  the  land  of  a  proprie- 
tor below.  Running  water  is  not  sus- 
ceptible of  an  appropriation  which  will 
justify  the  diversion  or  unreasonable  de- 
tention of  it.  The  proprietor  of  the  wa- 
ter-course has  a  right  to  avail  himself  of 
its  momentum  as  a  power,  which  may  be 
turned  to  beneficial  purposes.'"  The  case 
of  Mason  v.  Hill.  5  Barn.  &  Adol.  1,  con- 
tains language  of  an  exactly  similar  im- 
port, used  by  Lord  Denman  in  delivering 
the  opinion  of  the  court.  See,  also,  Gard- 
ner v.  Village  of  Newburgh,  2  John.  Ch. 
162.  Mr.  Chancellor  Kent  has  also  summed 
up  the  same  doctrine,  with  his  usual  ac- 
curacy, in  the  brief,  but  pregnant,  text  of 
his  Commentaries,  (3  Kent,  Comm. ,3d  Ed. ; 
Lect.  42,  p.  439;)  and  I  scarcely  know 
%vhei"e  else  it  can  be  found  reduced  to  so 
elegant  and  satisfactory  a  formulary.  In 
the  old  books  the  doctrine  is  quaintly, 
though  clearly,  stated  ;  for  it  is  said  that 
a  water-course  begins  ex  Jure  DatuviB,  and, 
having  taken  a  certain  course  naturally, 
it  cannot  be  [lawfully]  diverted.  Aqua, 
currjt,  et  debet  currere,  ut  currere  aolehat. 
Shury  v.  Piggot,  3  Bulst.  339,  Poph.  166. 

The  same  principle  applies  to  the  own- 
ers of  mills  on  a  stream.  They  have  an 
undoubted  right  to  the  flow  of  the  water 
as  it  has  been  accustomed  of  right  and 
naturally  to  flow  to  their  respective  mills. 
The  proprietor  above  has  no  right  to  di- 
vert or  unreasonably  to  retard  this  nat- 
ural flow  tothe  mills  below;  and  no  pro- 
prietor below  has  a  right  to  retard  or  turn 
it  back  upon  the  mills  above  to  the  preju- 
dice of  the  right  of  the  proi)rietors  thereof. 
This  is  clearly  established  by  the  authori- 
ties already  cited  ;  the  only  distinction  be- 
tween them  being  timt  the  right  of  a 
riparian  proprietor  arises  by  mere  opera- 
tion of  law  as  an  incident  to  his  owner- 
ship of  the  bank,  and  that  of  a  mill-owner 
as  an  incident  to  his  mill.  Bealey  v. Shaw, 
6  East,  20s;;  Saunders  v.  Newman,  1  Barn. 
&  Aid.  2.58;  Mason  v.  Hill,  3  Barn.  & 
Adol.  304,  5  Barn.  &  Adol.  1;  Blanchard  v. 
Baker.  8  Greenl.  253,  268;  and  Tyler  v.  Wil- 
kinson, 4  Mason,  397,  400-405,— are  fully 
in  point.  Mr.  Chancellor  Kent  in  his  Com- 
mentaries relies  on  the  same  principles 
and  fully  supports  them  by  a  large  survey 
of  the  authorities.  3  KentComm.  (3dEd. ;) 
Lect.  52,  pp.  441-445. 

Now,  if  this  be  the  law  on  this  subject, 


upon  what  ground  can  the  defendants  in- 
sist upon  a  diversion  of  the  natural  stream 
from  the  plaintiff's  mills,  as  it  has  been  of 
right  accustomed  to  flow  thereto?  First, 
it  is  said  that  there  is  no  perceptible  dam- 
age done  to  the  plaintiff.  That  sugges- 
tion has  been  already  in  part  answered. 
If  it  were  true,  it  could  not  authorize  a  di- 
version, because  it  impairs  the  right  of  the 
plaintiff  to  the  full,  natural  flow  of  the 
stream,  and  may  become  the  foundation 
of  an  adverse  right  in  the  defendants.  In 
such  a  case  actual  damage  is  not  neces- 
sary to  be  established  in  proof.  The  law 
presumes  it.  The  act  imports  damage  to 
the  right,  if  damage  be  necessary.  Such  a 
case  is  wholly  distinguishable  from  a  mere 
fugitive,  temporary  trespass,  by  diverting 
or  withdrawing  the  water  a  short  period 
without  damage,  and  without  an^^  pre- 
tense of  right.  In  such  a  case,  the  wrong, 
if  there  be  no  sensible  damage,  and  it  be 
transient  in  its  nature  and  character,  as  it 
does  not  touch  the  right,  may  possibly  (for 
I  give  no  opinion  upon  such  a  case)  be 
without  redress  at  law;  and  certainly  it 
would  found  no  ground  for  the  interposi- 
tion of  a  court  of  equity  by  way  of  injunc- 
tion. 

But  I  confess  myself  wholly  unable  to 
comprehend  how  it  can  be  assumed,  in  a 
case  like  the  present,  that  there  is  not  and 
cannot  be  an  actual  damage  to  the  right 
of  the  plaintiff.  What  is  that  right?  It 
is  the  right  of  having  the  water  flow  in  its 
natural  current  at  all  times  of  the  year  to 
the  plaintiff's  mills.  Now,  the  value  of  the 
mill  privileges  mustessentially  depend,  not 
merely  upon  the  velocitj'of  thestream,  but 
upon  the  head  of  water  whicli  is  perma- 
nentij'  maintained.  The  necessary  result 
of  lowering  the  head  of  Avater  permanent- 
ly would  seem,  therefore,  to  be  a  direct 
diminution  of  the  value  of  the  privileges; 
and,  if  so,  to  that  extentit  must  be  an  act- 
ual damage. 

Again,  it  is  said  that  the  defendants  are 
mill-owners  on  the  lower  dam,  and  ai-e  en- 
titled, as  such,  to  their  proportion  of  the 
water  of  the  stream  in  its  natural  flow. 
Certainly  they  are.  But  where  are  they 
so  entitled  to  take  and  use  it?  At  the 
lower  dam;  for  there  is  the  place  wliere 
their  right  attaches,  and  not  at  any  place 
higher  up  the  stream.  Suppose  they  are 
entitled  to  use  for  their  own  mills  on  the 
lower  dam  half  the  water  which  descends 
to  it,  wdiat  ground  is  there  to  say  that 
they  have  a  right  to  draw  off  that  half  at 
the  head  of  the  mill-pond?  Suppose  the 
head  of  water  at  the  lower  dam  in  ordi- 
nary times  is  two  feet  high,  is  it  not  obvi- 
ous that,  by  withdrawing  at  the  head  of 
the  pond  one-half  of  the  water,  the  wa- 
ter at  the  dam  must  be  proportionally 
lowered?  It  makes  no  difference  that  the 
defendants  insist  upon  drawing  off  only 
one-fourth  of  what  they  insist  they  are 
entitled  to;  for,  pro  tanto,  it  will  operate 
in  the  same  manner;  and,  if  they  have  a 
right  to  draw  off  to  the  extent  of  one- 
fourth  of  their  privilege,  they  have  an 
equal  right  to  draw  off  to  the  full  extent 
of  it.  Tlie  privilege  attached  tothe  mills 
of  the  plaintiff  is  not  the  privilege  of  using 
half,  or  any  other  proportion  merely,  of 
the   water  in  the  stream,  but   of  having 


GENERAL  riJINCIPLES. 


23 


the  whole  stream,  undiminished  in  its  nat- 
ural flow,  come  to  the  lower  dam  with  its 
full  power,  and  there  to  use  his  full  share 
of  the  water-power.  The  plaintiff  has  a 
title,  not  to  a  half  or  other  proportion  of 
the  water  in  the  pond,  but  is,  if  one  may 
so  say,  entitled  per  riiy  et  per  tout  to  liis 
propt)rtion  of  the  whole  bulk  of  the 
stream,  undivided  and  indivisible,  except 
at  the  lower  dam.  This  doctrine,  in  my 
judgment,  irresistibly  follows  from  the 
general  principles  already  stated;  and, 
what  alone  would  be  decisive,  it  lias  the 
express  sanction  of  the  supreme  court  of 
Maine  in  the  case  of  IJJanchard  v.  Baker, 
S  (Jreenl.  2^)'.i,  L'70.  The  court  there  said, 
in  reply  to  the  suggestion  that  the  owners 
of  the  eastern  shore  had  a  right  to  half 
the  water,  and  a  right  to  divert  it  to  that 
extent:  "It  has  been  seen  that,  if  they 
bad  been  owners  of  both  sides,  they  had 
no  right  to  divert  the  water  without 
again  returning  it  to  its  original  channel, 
(before  it  passed  the  lands  of  another  pro- 
prietor.) Besides,  it  was  possible,  in  the 
nature  of  things,  that  they  could  take  it 
from  their  side  only.  An  equal  portion 
from  the  plaintiffs  side  must  have  been 
mingled  with  all  that  was  diverted." 

A  suggestion  has  also  been  made  that 
the  defendants  have  fully  indemnified  the 
plaintiff  from  an.v  injury,  and  in  truth 
have  conferred  a  beneflt  on  him,  by  secur- 
ing the  water,  by  means  of  a  raised  dam, 
higher  up  the  stream,  at  Sebago  pond,  in  a 
reservoir,  so   as  to  be  capable  of  affording 


a  full  supply  in  the  stream  in  the  dryest 
seasons.  To  this  suggestion  several  an- 
swers may  be  given.  In  the  first  place, 
the  plaintiff  is  no  party  to  the  contract 
for  raising  the  new  dam,  and  has  no  in- 
terest therein,  and  cannot,  as  a.  matter  of 
right,  insist  upon  its  being  kept  up,  or 
upon  any  advantacre  to  be  derived  there- 
from. In  the  next  place,  the  plaintiff  is 
not  compellable  to  exchange  one  right  for 
anotlier,  or  to  part  with  a  present  inter- 
est in  favor  of  the  defendants  at  the  mere 
election  of  the  latter.  Even  a  supposed 
benefit  cannot  be  forced  upon  him  against 
his  will;  and,  certain]^',  there  is  no  pre- 
tense to  say  that,  in  point  of  law,  the  de- 
fendants have  any  right  to  substitute,  for 
a  present  existing  right  of  the  plaintiff's, 
any  other  which  they  may  deem  to  be  an 
equivalent.  The  private  property  of  one 
man  cannot  be  taken  by  another,  simply 
because  he  can  substitute  an  equivalent 
benefit. 

Having  made  these  remarks  upon  the 
points  raised  in  the  argument,  the  subject, 
at  least  so  far  as  it  is  at  present  open  for 
the  c(msideration  of  the  court,  appears  to 
me  to  be  exhausted.  Whether,  consist- 
ently with  this  opinion,  it  is  practicable 
for  the  defendants  successfullj'  to  estab- 
lish any  substantial  defense  to  the  bill,  it 
is  for  the  defendants,  and  not  for  the 
court,  to  consider.  I  am  authorized  to 
say  that  the  district  judge  concurs  in  this 
oi)inion. 

Decree  accordingly. 


(See,  also,  Embrey  v.  Owen,  6  Exch.  353;  Hastings  v.  Livermore,  7  Gray,  194;  Chaffee  v.  Pease,  10 
Allen,  537;  Blodgett  v.  Stone,  60  N.  H.  167.) 


Ex  damno  sine  injuria  non  oritur  actio. 


(13  Mass.  230.) 

Thurston  v.  Hancock  et  ah 

(Supreme  Judicial  Court  of  Massachusetts. 
March  Term,  1S15.) 

Adjoining  Land  Owners — Lateral  Support. 

Plaintiff  purctiased  land  on  the  summit  of  a  hill 
having  a  rapid  declivity  on  all  sides,  and  built 
a  house  thereon,  the  "foundation  of  which  was 
within  two  feet  of  the  boundary  of  the  land  on 
one  side.  Within  ten  years  thereafter  defend- 
ants, having  purchased  the  land  adjoining  on  that 
side,  dug  so  deeply  therein  that,  although  they 
did  not  dig  so  far  as  the  boundary,  the  earth  tell 
away,  by  reason  of  the  slope  of  the  hill,  so  as 
to  endanger  plaintiff's  house,  and  to  compel  him 
to  remove  therefrom  and  to  take  it  down.  Held, 
that  plaintiff,  having  acquired  no  rigtit  by  pre- 
scription, could  not  recover  from  defendants  for 
the  injury  to  his  house,  but  that  he  might  main- 
tain an  action  for  damages  for  the  loss  of  or  in- 
jury to  the  soil. 

On  report. 

Action  on  the  case  by  William  Thurston 
against  Ebenezer  Hancock  and  others. 
The  declaration  alleged  that  plaintiff  was 
seised  in  fee  of  a  certain  dwelling-house 
and  land,  with  the  appurtenances,  which 
were  in  his  possession  and  occui)ancj^; 
that  defendants  wrongfully  and  injurious- 
ly toolv,  dug,  and  carried  away  the  earth, 
ground,  and  soil  from  the  land  next  ad- 
joining plaintiff's  said  dwelling-house  and 


land,  to  a  great  depth  below  the  ancient 
surface  of  said  next  adjoining  land,  and  be- 
low the  foundation  of  plaintiff's  said 
dwelling-house,  and  so  near  thereto  that 
the  ground,  earth,  and  soil  id  plaintiff  w&k 
undermined,  and  had  fallen  away  from 
around  his  said  dwelling-house,  and  from 
his  land,  so  that  the  cellar  walls  thereof 
had  been  left  exposed,  by  reason  whereof 
said  house  was  in  great  danger  of  being 
undermined  and  of  falling  down,  and  had 
been  rendered  wholly  unsafe  and  insecure 
to  dwell  in,  and  plaintiff  had  been  obliged 
to  quit  said  house  and  leave  it  em[)ty,  and 
had  been  put  to  greattrouble  and  expense, 
and  had  been  and  was  still  deprived  of  all 
benefit,  use,  and  enjoyment  thereof,  to  his 
damage  ."$20,000.  Defendants  pleaded  not 
guilty.  At  the  trial  there  was  a  verdict 
for  defendants,  which  was  to  be  set  aside, 
and  a  new  trial  granted,  if,  in  the  opinion 
of  the  court,  plaintiff  was  entitled  to  main- 
tain the  action,  upon  thefacts  reported  by 
the  judge  before  whom  the  case  was  tried, 
which  were  substantially  as  follows: 
Plaintiff,  in  the  year  1>02,  purchased  cer- 
tain laud  on  Beacon  Hill,  in  the  town  of 
Boston,  which  was  bounded  westwardly 
by  land  then  belonging  to  that  town, 
.afterwards,  in  the  year  ls04,  plaintiff  erect- 
ed a  valuable  brick  dwelling-house  there- 
on, the  back  of  which  was  about  two  feet 


24 


LAW  OF  TORTS. 


from  said  western  boundary  of  his  land, 
and  llie  foundation  of  wiiioh  wasabout  15 
feet  bel(»w  the  ancient  surface  of  tlie  laud. 
Plaintiff,  witli  liis  family,  occupied  said 
house  and  land  from  the  month  of  Decem- 
ber, 1S04,  until  they  were  obliged  to  re- 
move therefrom  as  hereinafter  mentioned. 
In  the  year  1811  defendants  commenced 
digginsc  and  removing  the  gravel  from 
tlie  side  of  said  hill.  On  January  27,  1811, 
plaintiff  gave  written  notice  to  defendants 
that  his  house  was  endangered  thereby, 
but  they  continued  to  dig  and  carry  away 
the  earth  and  gravel  of  tlie  hill,  until  the 
commencement  of  this  action.  The  only 
land  belonging  to  defendants  which  ad- 
joined said  house  and  land  of  plaintiff  was 
purchased  by  them  of  the  town  of  Boston, 
and  conveyed  by  deed  dated  August  (5, 
1811,  and  consisted  of  a  lot  al.'out  IdO  feet 
square  upon  the  top  of  said  Beacon  Hill, 
and  a  rightto  a  highway  30  feet  wide  lead- 
ing to  it  from  Sumner  street,  which  lot 
and  highway  were  laid  out  by  said  town 
more  tlian  60  years  before,  for  the  purpose 
of  erecting  a  beacon,  and  had  never  been 
used  for  any  other  purpcjse,  except  the 
erection  of  a  monument;  thetown  having 
derived  its  title  to  said  land  from  long- 
continued  possession  for  said  y>urpose. 
All  these  facts  were  known  to  defendants 
before  they  purchased  said  land  of  the 
town.  Said  land  adjoined  plaintiff's  house 
and  land  on  the  western  side,  and,  at  the 
time  of  suing  out  plaintiff's  writ,  defend- 
ants' said  digging  and  removal  of  earth 
had  approached  on  the  surface  within  .5  or 
6  feet  of  plaintiff's  house  on  the  western 
side  thereof,  and  in  some  places  the  earth 
had  fallen  from  the  walls  thereof  bj' rea- 
son of  said  digging  and  removal.  Defend- 
ants had  dug  and  carried  away  the  earth 
near  thenorth-westerly  corner  of  plaintiff's 
house  to  the  depth  of  45  feet,  and  on  the 
western  side  thereof  to  the  depth  of  30  feet, 
below  the  natural  surface  of  their  own  as 
well  as  of  plaintiff's  land;  the  earth  so 
dug  and  removed  by  them  being  upon  and 
from  their  land  next  adjoining  plaintiff's 
land.  By  reason  of  such  digging  and  re- 
moving of  the  earth  to  said  depth  below 
the  ancient  surface,  part  of  plaintiff's  earth 
and  soil,  on  the  surface  of  his  said  land, 
had  fallen  away  and  slidden  upon  defend- 
ants' land;  and  the  foundation  of  plain- 
tiff's house  was  rendered  insecure,  and  it 
became  and  was  at  the  time  of  commenc- 
ing the  action  unsafe  and  dangerous  to 
dwell  in  said  house;  and  plaintiff  was 
obliged  to  quit  and  abandon  said  house 
previous  to  commencing  this  action,  and 
afterwards  to  take  it  down  in  order  to 
Save  the  materials  thereof. 

Mr.  Otis  and  Mr.  Prescott,  for  plaintiff. 
The  Solicitor  General  and  Mr.  Aylwin,  for 
defendants. 

Parker,  C.  J.  The  facts  agreed  present 
a  case  of  great  misfortune  and  loss,  and 
one  which  has  induced  us  to  look  very 
minutely  into  the  authorities,  to  see  if  any 
remedy  exists  in  law  against  those  who 
have  been  the  immediate  actors  in  what 
has  occasioned  the  loss;  but,  after  all  the 
re.searches  we  have  been  able  to  make,  we 
cannot  satisfy  ourselves  that  the  facts  re- 
ported   will   maintain    this    action.     The 


plaintiff  purchased  his  land  in  the  year 
1802,  on  the  summit  of  Beacon  Hill,  which 
has  a  rapid  declivity  on  all  sides.  In  1804 
he  erected  a  brick  dwelling-house  and  out- 
houses on  this  lot;  and  laid  his  founda- 
tion on  the  western  side,  within  two  feet  of 
his  boundary  line.  The  inhabitants  of  the 
town  of  Boston  were  at  that  time  the 
owners,  either  by  original  title  or  by  an 
uninterrupted  possession,  for  more  than 
(ii)years,  of  the  land  on  the  hill  lying  west- 
wardlv  of  the  lot  purchased  by  the  plain- 
tiff. On  theGthof  August,  1811, the  defend- 
ants purchased  of  the  town  the  land  sit- 
uated westwardly  of  the  said  lot  owned 
by  the  plaintiff;  and  in  the  same  year 
commenced  leveling  the  hill,  by  digging 
and  carrying  away  the  gravel, — they  not 
actually  digging  up  to  tiie  line  of  division 
between  them  and  the  plaintiff,  but  keep- 
ing five  or  six  feet  therefi-om.  Nevei-the- 
less,  by  reason  of  tiie  hill,  the  earth  fell 
away,  so  as  in  some  places  to  leave  the 
plaintiff's  foundation  wall  bare,  and  so  to 
endanger  the  falling  of  his  house  as  to 
make  it  prudent  and  necessary,  in  the 
opinions  of  skillful  persons,  for  the  safety 
of  the  lives  of  himself  and  his  family,  to 
remove  from  the  house;  and,  in  order  to 
save  the  materials,  to  take  down  the 
house,  and  to  rebuild  it  on  a  safer  founda- 
tion. The  defendants  were  notified  of  the 
probable  consequences  of  thus  digging  by 
thejjlaintiff,  and  were  warned  that  they 
would  be  called  upon  for  damages  in  case 
of  any  loss. 

The  manner  in  which  the  town  of  Bos- 
ton acquired  a  title  to  the  land,  or  the 
particular  use  to  which  it  was  appropri- 
ated, can  have  no  intluence  upon  the  ques- 
tion, as  the  fee  was  in  the  town,  without 
any  restriction  as  to  the  manner  in  which 
the  land  should  be  used  or  occupied.  It 
is  a  common  principle  of  the  civil  and  of 
the  common  law  that  the  proprietor  of 
land,  unless  restrained  by  covenant  or 
custom,  has  the  eiitire  dominion,  not  only 
of  the  soil,  but  ol  the  space  above  and 
below  the  surface,  to  any  extent  he  may 
choose  to  occupy  it.  The  law,  founded 
upon  principles  of  reason  and  common 
utility,  has  admitted  a  qualification  to 
this  dominion,  restricting  the  proprietor 
so  to  use  his  own  as  not  to  injure  the  prop- 
erty, or  impair  any  actual  existing  rights 
of  another.  iS7c  uteve  tuo  ut  aliennui  non 
IseOns.  Thus  no  man,  having  land  adjoin- 
ing his  neighbor's  which  has  been  long 
built  upon,  shall  erect  a  building  in  such 
manner  as  to  interrupt  the  light  orthe  air 
of  his  neighb  jr's  house,  or  expose  it  to 
injury  from  the  weather,  or  to  unwhole- 
some smells.  But  this  sul)jection  of  the 
use  of  a  man's  own  property  to  the  con- 
venience of  his  neighbor  is  founded  upon 
a  supposed  pre-existing  right  in  his  neigh- 
bor to  have  and  enjoy  the  privilege 
which  by  such  act  is  impaired.  Theref(jre 
it  is  that  1)3'  the  ancient  common  law  no 
man  could  maintain  an  action  against  the 
owner  of  an  adjoining  tract  of  land  for 
interrupting  the  passage  of  the  light  or 
the  air  to  a  tenement,  unless  the  tene- 
ment thus  affected  was  ancient;  so  that 
the  plaintiff  could  prescribe  for  the  privi- 
lege of  which  he  had  been  deprived,  upon 
the  common  motion  of  prescription,  that 


GENERAL  PRINCIPLES. 


there  was  formerly  a  grant  of  the  privi- 
le;;e,  whicli  grant  has  been  lost  by  laps-e 
of  time,  altliouffh  tlie  enjoyment  of  it  has 
continued.  Now,  in  sncii  case  of  a  grant 
I)resunie(l,  it  shall,  for  the  purposes  of 
justice,  be  furtlier  presumed  tliat  it  was 
from  tiie  ancestor  of  the  man  interrupt- 
ing the  privilege,  or  from  tliose  whose 
estate  he  has,  so  as  to  control  him  in  the 
use  of  his  own  ]n'opcity  in  any  manner 
that  shall  interfere  with  or  defeat  an  an- 
cient grant  thus  supposed  to  have  been 
mad<^.  Tliis  is  tlie  only  way  of  accounting 
for  the  common-law  princii^le  which  gives 
one  neighbor  an  action  against  another 
for  niaking  the  same  use  of  his  property 
which  he  has  made  of  his  own.  And  it  is 
a  reasonable  i)rinciple,  for  it  would  be  ex- 
ceedingly unjust  that  successive  purchas- 
ers or  inlieritors  of  an  estate  for  the  space 
of  60  years,  with  certain  valuable  privi- 
leges attached  to  it,  should  be  liable  to  be 
<lisTurbed  by  the  representatives  orsucces- 
sors  of  those  who  originally  granted  or 
consented  to  or  acquiesced  in  ti.euse  of  the 
privilege. 

It  is  true  that  of  late  years  the  courts 
in  England  have  sustained  actions  for  the 
obstruction  of  such  privileges  of  much 
shorter  duration  than  GO  years.  But  the 
same  principle  is  preserved  of  the  presump- 
tion of  a  grant.  And,  indeed,  the  modern 
doctrine,  with  respect  to  easements  and 
privileges,  is  but  a  necessary  cons-equence 
of  late  decisions,  that  grants  and  title- 
deeds  may  be  presumed  to  have  been 
made,  although  the  title  or  privilege 
claimed  under  them  is  of  a  much  later 
date  than  the  ancient  time  of  prescription. 
The  plaintiff  cannot  pretend  to  found  his 
action  upon  this  principle;  for  he  first 
became  proprietor  of  the  land  in  1802,  and 
built  his  house  in  1S04,  10  ^-ears  before  the 
commencement  of  his  suit.  !So  tliat  if  the 
presumption  of  a  grant  were  not  defeated 
b3'  showing  the  commencement  of  his  title 
to  be  so  recent,  yet  there  is  no  case  where 
less  than  20  .vears  has  entitled  a  building 
to  the  qualities  of  an  ancient  building,  so 
as  to  give  the  owner  a  right  to  the  con- 
tinued use  of  privileges,  the  full  enjoyment 
of  which  necessarily  trenches  upon  his 
neighbor's  right  to  use  his  own  property 
in  the  way  he  shall  deem  most  to  his  ad- 
vantage. A  man  who  purchases  a  house, 
or  succeeds  to  one,  which  has  the  marks 
of  antiquity  about  it,  may  well  suppose 
that  all  its  privileges  of  right  appertain 
to  the  house;  and,  indeed,  they  could  not 
have  remained  so  long  without  the  culpa- 
ble negligence  or  friendly  acquiescence  of 
those  who  might  originally  have  had  a 
right  to  hinder  or  obstruct  them.  But 
a  man  who  himself  builds  a  house  adjoin- 
ing his  neighbor's  land  ought  to  foresee 
the  probable  use  by  his  neighbor  of  the 
adjoining  land;  and  by  convention  with 
his  neighbor,  or  by  a  different  arrange- 
ment of  his  house,  secure  himself  against 
futur<^  inten-uption  and  inconvenience. 
This  seems  to  be  the  result  of  the  cases 
anciently  settled  in  England  upon  the 
subject  of  nuisance  or  interruption  of 
privileges  and  easements;  and  it  seems 
to  be  as  much  the  dictate  of  common 
sense  and  sound  rea:Son  as  of  legal  author- 
ity. 


The  decisions  cited  by  thecounsel  for  the 
plaintiff!  in  support  of  this  action  gener- 
ally go  to  establish  onl^'  the  general  prin- 
ciple that  a  remedy  lies  for  one  who  is  in- 
jured consequentially  by  the  acts  of  his 
neighbor  done  t)n  his  own  property.  Th(! 
civil-law  doctrine  cited  from  Domat  will 
be  found,  upon  examination,  to  g(j  no  fur- 
ther than  the  common  law  upon  this  sub- 
ject; for,  although  it  is  there  laid  down 
that  new  works  on  a  man's  ground  are 
prohibited,  provided  they  are  hurtful  to 
others  who  have  a  right  to  hinder  them, 
and  that  the  person  erecting  them  shall 
restore  things  to  their  former  state,  and 
repair  the  damages, — from  whence,  proba- 
bly, the  common-law  remedy  of  abating  a 
nuisanceas  well  as  a  recovery  of  damatres, 
— 3'et  this  is  subsequently  explained  and 
qualified  in  another  part  of  the  same 
chapter,  where  it  is  said  that  if  a  man 
does  what  he  has  a  right  to  do  ui)on  his 
own  land,  without  trespassing  upon  any 
law,  custom,  title,  or  possession,  lie  is  not 
liable  to  damage  for  injurious  conse- 
quences, unless  he  does  it.  not  for  his  own 
advantage,  but  maliciously,  and  the  dam- 
ages shall  be  considered  as  casualties  for 
which  he  is  not  answerable.  Thecommon 
law  has  adopted  the  same  principle,  con- 
sidering the  actual  enjoyment  of  an  ease- 
ment for  a  long  course  of  years  as  estab- 
lishing a  right  .vhich  cannot  with  impuni- 
ty be  impaired  by  him  who  is  the  owner 
of  the  land  adjoining. 

The  only  case  edited  from  common-law 
authorities  tending  to  show  that  a  mere 
priority  of  building  operates  to  deprive 
the  tenant  of  an  adjoining  lot  of  the  right 
of  occupying  and  using  it  at  his  pleasure, 
without  being  subjected  to  damages  if  by 
such  use  he  should  injure  a  building  pre- 
viously erected,  is  that  of  Sliiigsby  v. 
Barnard,  cited  from  1  Rolle,  430.  Sir  John 
Slingsby  brought  his  action  on  the  case 
against  Barnard  and  Ball,  and  declai-od 
that  he  was  seised  of  a  dwelling-house 
niiper  editicatus,  and  that  Barnard  was 
seised  of  a  house  next  adjoining;  and 
that  Barnard,  and  Ball  under  him,  in 
making  a  cellar  under  Barnard's  house, 
dug  so  near  the  foundation  of  the  i)lain- 
tiff's  house  that  they  undermined  the 
same,  and  one  half  of  it  fell.  Judgment 
upon  this  declaration  was  for  the  plain- 
tiff, no  objection  having  been  made  as 
to  the  right  of  action,  but  onlj'  to  the 
form  of  the  declaration.  The  report  of 
this  case  is  very  short  and  unsatisfac- 
tory, it  not  appearing  whether  the  defend- 
ant confined  himself  in  his  digging  to 
his  own  land,  or  wbether  the  house 
then  lately  built  was  upon  a  new  or  an 
old  foundation.  Indeed,  it  seems  impos- 
sible to  maintain  that  case  upon  the  facts 
made  to  appear  in  the  report  without  de- 
nying principles  which  seem  to  have  been 
deliberately  laid  down  in  other  books 
equally  respectable   as  authorities.     Thus 


'Domat,  309.  40S;  Fitzh.  Nat.  Brev.  183;  Al- 
dred's  Case,  9  Coke,  59;  Jones  v.  Powell,  Palmer, 
536;  1  Roll.  Abr.  140;  Id.  43U;  Slinprsbyv.  Barnard, 
1  Rolle,  430;  2  Roll.  Abr.  565;  2  Saund.  097:  Co. 
Litt.  56b;  Rex  v.  ^hite  1  Burrows,  337;  Stone  v. 
CartAATight,  6  Term  R.  411 ;  Proprietors,  etc. ,  v. 
Bradley,  7  East,  368;  Bush  v.  Steiumau,  1  Bos.  & 
P.  405;    Leader  v.  Moxton,  3  Wils.  461. 


26 


LAW  OF  TORTS. 


ID  Palmer  v.  Flesliees,  Sid.  167,  upon  a  spe- 
cial vei-dict  the  case   was  thus:     A.,  hav- 
ing a  certain  quantitj'    of  land,  erected   a 
new  house  upon  part  of  it,  and   leased  the 
house  to   B.,  and   the  residue  of  the  land 
to  C,  who  put  logs  and  other  things  upon 
the  land  adjoining  said  house,  so  that  the 
windows    were    darkened,    etc.      It    was 
holden     that     B.    could     maintain     case 
against  C.  for  this  injury.     But  the  reason 
seems  to  be  that  C.  took   his  lease  seeing 
that   the    house   was  there,  and   that   he 
should  not,  any  more  than  the  lessor,  ren- 
der the  house  first  leased  less  valuable  by 
his   obstructions.     It    was,   however,   de- 
cided in  the  same  case  that  if  one  seised  of 
land  lease  40  feet  of  it  to  A.  to  build  upon, 
and  another  40  feet   to   B.  to   build   upon, 
and  one  builds  a  house,  and  then  the  other 
digs   a  cellar  upon   his  ground,  by  which 
the  wall  of  the  first  house  adjoiuing  falls, 
no  action  lies;  and   so,  they   said.it   was 
adjudged  in  Pigott   &   Shewry's  case,  (W. 
Jones,  145,  Palm.   444;  Latch,   153;    Noy, 
84;  3  Bulst.  3.39;  Poph.  lOG,)  for  each    one 
may   make  what  advantage  he  can  of  his 
own.   The  principle  of  this  decision  is  that 
both  parties  came  to  the  land  with  equal 
rights  in  point  of  time  and  title,  and   that 
he   who    first  built  his  house  should  have 
taken  care  to  stipulate  with  his  neighbor, 
or  to   foresee    the    accident,  and   provide 
against  it  by  setting  his  house  sufhciently 
within  his  line  to  avoid   the   mischief.     In 
the  same  case  it  is  stated  as  resolved  by 
the  court  that,  if  a  stranger  have  the  land 
adjoining   to  a  new   house,  he  may   build 
new  houses,  etc.,  upon    his   land,  and   the 
other  shall  be   without  remedy  when  the 
lights   are  darkened;  otherwise  when  the 
house   first  built  was  an  ancient  one.     In 
EoU.  Abr.  565,  A.,  seised  in  fee  of  copyhold 
estate  next   adjoining  land  of  B.,  erects  a 
new  house  upon  his  copyhold   land,  and  a 
part  is  built  upon    the  confines   next   ad- 
joining   the  land  of  B.,  and  B.  afterwards 
digs   his  land  so  near  the  house  of  A.,  but 
on  no  part  of  his  land,  that  the  foundation 
of  the   house,   and   even   the  house  itself, 
falls;  yet  no  action   lies  for  A.  against  B., 
because  it  was  the  folly  of  A.  that  he  built 
his   house  so  near  to  the  land  of  B.     For 
by  his  own  act  he  shall  not  liinder  B.  from 
thebestuseof  hisownland  that  hecan  ;aud 
after  verdict  judgment  was  arrested.    The 
rep(jrter    adds,    however,    that    it  seems 
that  a  man  who  has  land  next   adjoining 
my  land  cannot  dig  his  land  so  near  mine 
as' to  cause  mine  to  slide  into  the  pit,  and, 
if  an  action  be  brought  for  this,  it  will  lie. 
Although,   at  first   view,   the  opinion   of 
Eolle  seems  to  be  at  variance  with  the  de- 
cision which  he  has  stated,  yet  they   are 
easily    reconciled    with    sound   principles. 
A  man  in  digging  upon  his  own  land  is  to 
have  regard   to   the  position  of  his  neigh- 
bor's land,  and  the  probable  consequences 
to  his  neighbor  if  he  digs   too  near  his 
line;  and,  if   he  disturbs  the  natural  state 
of  the  soil,  he  shall  answer  In   damages; 
but  he  is  answerable  only  for  the  natural 
and  necessary  consequences  of  his  act, and 
not    for    the    value    of    a    house  put  up- 
on or  near  the  line  by  his  neighbor;    for 
in    so    placing    the    house    the   neighbor 
was  in   fault,   and  ought  to   have  taken 
better    care    of  his    interest.     If    this    be 


the  law,  the  case  before  us  is  settled' 
bj'  it;  and  we  have  not  been  able  to 
discover  that  the  doctrine  has  ever  been 
overruled,  nor  to  discern  any  good  rea- 
son why  it  should  be.  The  plaintiff  pur- 
chased his  land  in  1802.  At  that  time 
the  inhabitants  of  Boston  were  in  pos- 
session and  the  owners  of  the  adjoining 
land  now  owned  by  the  defendants.  The 
plaintiff  built  his  house  within  two  feet 
of  the  western  line  of  the  lot,  knowing 
that  the  town,  or  those  who  should  hold 
under  it,  had  a  right  to  build  equally  near 
to  the  line,  or  to  dig  down  into  the  soil 
for  any  other  lawful  purpose.  He  knew, 
also,  the  shape  and  nature  of  the  ground, 
and  thatitvvas  impossible  to  dig  there 
without  causing  excavations.  He  built 
at  his  peril,  ff)r  it  was  not  possible  for 
him,  merely  by  building  upon  his  own 
ground,  to  deprive  the  other  party  of  such 
use  of  his  as  he  should  deem  most  advan- 
tageous. There  was  no  right  acquired 
by  his  lO-years  occupation  to  keep  his 
neighbor  at  a  convenient  distance  from 
him.  He  could  not  have  maintained  an 
action  for  obstructing  the  light  or  air,  be- 
cause he  should  have  known  that,  in  the 
course  of  imi^rovements  on  the  adjoining 
land,  the  light  and  air  might  be  obstruct- 
ed. It  is  in  lact  damnum  absque  injuria. 
By  the  authoritj'  above  cited,  however, 
it' would  appear  that  for  the  loss  of  or  in- 
jury to  the  soil  merely,  his  action  may  be 
maintained.  The  defendants  should  have 
anticipated  the  consequence  of  digging  so 
near  the  line,  and  they  are  answerable  for 
the  direct  conspquential  damage  to  the 
plaintiff,  although  not  for  the  adventi- 
tious damage  arising  from  his  putting  his 
house  in  a  dangerous  position. 


(40  N.  J.  Eq.  447,  3  All.  Rep.  16S. ) 

Ocean  Grove  Camp  Meeting  Ass'n  v. 
Commissioners  of  Asbury  Park. 


(Court  of  Chancery  of  New  Jersey. 
1885.) 


Oct.  Term^ 


SUBTERRANEAX  WATERS— DIVERSION. 

Complainants,  by  boring  for  water,  on  land 
owned  by  them,  to  a  depth  of  about  400  feet,  had 
obtained  a  flow  of  .50  gallons  per  minute.  Sub- 
sequently defendants,  needing  water  for  use  on 
their  land,  three-eighths  of  a  mile  from  complain- 
ants', and  having  failed  to  obtain  a  supply  by 
boring  thereon,  sank  a  shaft  on  land  of  third  par- 
ties, by  permission  of  the  latter,  within  500  feet 
of  complainants'  well,  to  nearly  the  same  depth, 
and  thereby  secured  a  flow  of  30  gallons  a  min- 
ute, and  thereupon  the  supply  from  complainants' 
well  fell  to  30  gallons  per  minute.  Held  that,  in 
the  absence  of  proof  that  the  water  was  taken 
from  a  stream,  it  must  be  presumed  to  be  the 
property  of  the  owner  of  the  fee;  and  complain- 
ants could  not  maintain  an  action  to  compel  de- 
fendants to  close  the  well  so  opened  by  the  lat- 
ter, or  to  restrain  them  from  sinking  other  wells 
nearer  complainants'  well. 

On  order  to  show  cause  why  injunction 
should  not  issue. 

R.  Ten  Broeck  Stout,  for  complainants. 
D.  Harvey,  Jr., and  J.  F.  Hawkins,  for  de- 
fendants. 

Bird,  V.  C.  More  than  15  years  ago  the 
complainants   purchased   a   large  tract  of 


GENERAL  PRINCIPLES. 


27 


land  fronting  upon  the  ocean,  chiefly  for 
the  purposes  of  a  summer  resort  to  exer- 
cise the  right  of  worship.  The  enter|)rise 
has  so  grown  tliat  in  wintpr  it  has  a  pop- 
ulation of  Mbout  5,000,  and  in  summer  of 
]0,000  or  15,000.  The  authorities  soon  dis- 
covered that,  to  preserve  the  good  health 
of  the  residents  and  visitors,  it  was  abso- 
lutely necessary  to  improve  their  water- 
supply  and  sewerage  sj'stem.  To  do  this 
they  bored  for  water,  and  at  the  depth  of 
over  400  feet  struck  water  which  gave 
them  a  flow  of  50  gallons  per  minute  at  an 
elevation  above  the  surface  of  2S  feet. 
This  they  carried  into  the  city  by  means 
of  pipes,  and  supplied  therewith  about  70 
hotels  and  cottages.  They  also  applied  it 
to  the  improvement  of  their  sewerage  sys- 
tem. The  volume  of  water  thus  produced 
continued  to  flow  undiminished  in  quanti- 
ty and  with  unabated  force  until  the  ac- 
tion of  the  defendants  now  complained  of. 
and  to  restrain  which  the  bill  in  this  cause 
was  tiled.  The  Commissioners  of  Asbury 
Park,  a  corporate  body,  purchased  a  large 
tractof  land  immediately  north  of  and  ad- 
jacent to  thetract  owned  by  Ocean  Grove. 
Under  their  management,  this,  too,  has 
become  a  famous  seaside  resort.  Its  pop- 
ulation is  equal  to,  if  not  greater  at  all 
times  than,  that  of  Ocean  Grove.  The  au- 
thorities saw  a  like  necessity  for  an  in- 
creased supply  of  wholesome  water.  Thej' 
entered  into  a  contract  with  others,  a  por- 
tion of  these  defendants,  to  procure  for 
them  water  by  boring  in  the  earth.  These, 
their  agents,  sank  several  shafts  to  the 
depth  of  over  400  feet  without  satisfactory 
success.  One  shaft  yielded  about  4  gallons 
to  the  minute,  and  another,  which  yielded 
the  most,  only  9.  All  of  the  wells  were 
upon  the  land  and  premises  of  the  Asbury 
"Park  Association.  It  became  evident,  and 
is  manifest  to  the  most  casual  observer, 
that  these  wells  would  not  supply  the  vol- 
ume of  water  needed.  It  was  also  mani- 
fest that  the  experiment  to  procure  water 
by  digging  upon  their  own  land  had  been 
quite  reasonably  extended,  although  not 
so  complete  as  to  satisfj'  the  mind  that 
they  cannot  obtain  water  on  their  own 
premises  as  well  as  elsewhere,  since  it  is  in 
evidence  that  there  are  two  wells  on  their 
premises,  sunk  by  individuals,  which  pro- 
duce 15  gallons  each  per  minute,  being  as 
much  in  quantity  as  they  procure  from  the 
well  which  is  complained  of.  Failing  in 
their  efforts  upon  their  own  premises,  they 
go  elsewhere,  on  the  land  owned  by  indi- 
viduals, and,  procuring  a  right  from  indi- 
vidual owners,  sink  a  shaft  upon  the  pub- 
lic highway,  near  to  the  land  of  the  com- 
plainants, and  within  500  feet  of  the  com- 
plainants' well.  This  bore  extended  to 
the  depth  of  416  feet,  within  S  feet  of  the 
depth  of  complainants'  well.  At  this 
depth  they  secured  a  flow  of  water  at  the 
rate  of  30  gallons  per  minute,  and  the  sup- 
ply from  the  complainants'  well  was  al- 
most immediately'  decreased  from  50  gal- 
lons to  30  per  minute.  The  diminution  in 
"water  was  immediately  felt  by  many  of 
those  who  depended  for  a  supply  from  this 
source  in  Ocean  Grove,  The  Asbury  Park 
authorities  propose  to  sink  other  wells 
still    nearer    the   well    of     complainants. 


This  bill  asks  that  they  may  be  prohibited 
from  so  doing,  and  that  they  may  be  com- 
manded to  close  the  well  already  opened, 
which,  it  is  alleged,  is  supplied  from  the 
same  source  that  the  complainants'  well 
is  supplied  from. 

The  complainants  are  flrst  in  point  of 
time.  They  are  upon  their  own  land  and 
premises.  They  procure  water  from  their 
own  soil  to  be  used  in  connection  with 
their  said  premises,  in  the  improvement 
and  bent-ticial  enjoyment  of  their  occupa- 
tion. In  this  they  have  exercised  an  inde- 
feasible and  unqualified  right.  It  matters 
not  whether  the  water  which  they  obtain 
is  from  a  pond  or  under-ground  basin,  or 
only  the  result  of  percolation,  or  from  a 
flowing  stream.  The  defendants  went 
from  their  own  land  upon  the  land  of 
strangers,  and  obtained  permission  to 
bore  for  water,  and  there  sink  their  shaft, 
procuring  water  from  the  same  source  that 
the  complainants  procured  their  water, 
and  diverted  it  and  carried  it  to  their 
premises,  three-eighths  of  a  mile,  for  use. 
Can  they  be  restrained  from  doing  this? 
A  very  careful  consideration  of  a  great 
many  authorities  leads  me  to  the  conclu- 
sion that  they  cannot  at  the  instance  of 
the  complainants.  Ang.  Water-Courses, 
§§  109-114,  inclusive;  Gould,  Waters,  §  i^^O; 
Ballard  v.  Tomlinson,  26  Ch.  Div.  194; 
Chasemore  v.  Richards,  7  H.  L.  Cas.  349,  5 
Hurl.  &  N.  9S2;  Acton  v.BIundell,  12  Mees. 
&  W,  324;  Chase  v.  Silverstone.  62  Me,  175; 
Roath  V,  Driscoll,  20  Conn.  533;  Village  of 
Delhi  V.  Youmans.  45  N.  Y.  362;  Goodale 
V.  Tuttle,  29  N.Y.4.59;  Wheatlev  v.  Baugh, 
25  Pa.  St.  528;  Fruzier  v.  Brown,  12  Ohia 
St.  294. 

The  courts  all  proceed  upon  the  ground 
that  waters  thus  uspd  and  diverted  are 
waters  which  percolate  through  the  earth, 
and  are  not  distinguished  by  anv  certain 
and  well-defined  stream,  and  consequent- 
ly are  the  absolute  property  of  the  owner 
of  the  fee,  as  completely  as  are  the  ground, 
stones,  minerals,  or  other  matter  to  any 
depth  whatever  beneath  the  surface.  The 
one  is  just  as  much  the  subject  of  use,  sale, 
or  diversion  as  the  other.  The  owner  of 
a  mine  encounters  innumerable  drops  of 
water  escaping  from  every  cre"7ice  and  fis- 
sure. Thfse,  when  collected,  interfere 
with  his  progress,  and  he  may  remove 
them,  although  the  spring  or  well  of  the 
land-owner  below  be  diminished  or  de- 
stroyed. So  the  owner  or  owners  of  a 
bog,  marsh,  or  meadow  may  sink  wells 
therein,  and  carry  off  the  waters  collected 
in  them,  to  the  use  or  enjoyment  of  a  dis- 
tant village  or  town,  although  the  waters 
of  a  large  stream  upon  the  surface  be 
thereby  so  diminished  as  to  injure  a  mill- 
owner  who  had  enjoj'ed  the  usi"  of  the  wa- 
ters of  the  stream  for  nianj'  years.  Upon 
these  principles,  therecan  be  no  doubt  but 
that  every  lot-owner  in  Ocean  Grove  or 
Asbury  Park  could  sink  a  well  on  his  lot 
to  any  depth,  and,  in  case  one  should  de- 
prive his  neighbor  of  a  portion  or  all  of  his 
supposed  treasure,  no  action  would  lie. 
A  moment's  reflection  will  enable  every 
one  to  perceive  that  such  conditions  or 
contingencies  are  necessarily  incident  to 
the  ownership  of  the  soil.    In  the  case  be- 


28 


LAW  OF  TORTS. 


fore  me  there  is  no  proof  that  the  waters 
in  question  are  taken  from  a  stream,  and 
I  have  no  right  to  presume  that  they  are. 


The  presumption  is  the  other  way.  It 
seems  to  be  my  verj'  plain  dutj' to  discharge 
the  order  to  show  cause,  with  coats. 


(See,  also,  Lvbe's  Appeal,  106  Pa.  St.  626;  Pennsylvania  Coal  Co.  v.  Sanderson,  113  Pa.  St.  126,  6 
Atl.  Rep.  453;  (iilmore  v.  Driscoll,  122  Mass.  199;  Radclifl  v.  Mayor,  etc.,  of  Brooklyn,  4  N.  Y.  195; 
Winn  V.  Abeles,  35  Kan.  85,  10  Pac.  Rep.  443 ;  Tunstall  v.  Christian,  SO  Va.  1.) 


In  some  classes  of  cases,  there  must  be  damage  sustained  in  order 
that  there  may  be  a  cause  of  action  for  tort. 


(5  Best&  S.  384.) 

Roberts  et  ux.  v.  Robkrts. 

{Court  of  QueeiVs  Bench.    June  3,1864.) 

Slaxder — Special  Damage. 

In  an  action  by  husband  and  wife  for  slander 
of  the  latter,  the  declaration  alleged  that  the  wife 
was  a  member  of  a  certain  religious  sect  and  of 
one  of  the  societies  of  such  sect;  that  the  sect  and 
its  societies,  and  the  members  thereof,  were  sub- 
ject to  rules  and  regulations,  by  which  a  mem- 
ber of  one  such  society  could  not  become  a  mem- 
ber of  another  sociatyin  the  sect  unless  the  lead- 
ers or  elders  of  the  first  society  certified  that 
such  member  was  morally  and  otherwise  fit  to  be 
a  member;  and  that  by  reason  of  words  spoken 
by  defendant  of  the  wife,  imputing  to  her  im- 
moral conduct,  she  was  not  allowed  to  continue 
to  be  a  member  of  the  society,  and  the  leaders  or 
elders  thereof  refused  to  certify  that  she  was 
morally  or  otherwise  fit  to  be  a  member  of  the 
sect,  or  of  any  society  of  the  same,  and  she  was 
not  allowed  to  become  a  member  of  a  certain  so- 
ciety thereof,  and  was  prevented  fi'om  attending 
religious  worship,  and  was  injured  In  her  good 
name  and  reputation,  and  became  sick  and  great- 
ly distressed  in  body  and  mind.  Held,  that  no 
special  damage  was  alleged  sufficient  to  make  the 
words  actionable. 

Demurrer  to  declaration. 

Action  by  Robert  Roberts  and  Margaret 
Roberts,  his  wife,  for  an  alleged  slander 
on  the  latter. 

The  declaration  stated  that  the  plaintiff 
Margaret  was  a  member  of  a  sect  of  Prot- 
estant dissenters,  to-wit,  Calvinistic 
Methodists,  and  was  a  member  of  a  pri- 
%'ate  society  and  congregation  of  that  sect 
held  at  Denbigh,  in  ISi^orth  Wales,  and  the 
sect,  and  the  different  societies  of  it,  were 
suliject  to  certain  rules  and  regulations, 
and  the  different  members  of  the  sect  and 
the  societies  were  respectively  subject  to 
those  rules  and  regulations,  and  under 
the  control  and  authority  of  the  several 
respective  societies,  and  of  the  leaders  of 
the  same,  with  respect  to  the  moral  and 
religious  conduct  of  such  members,  and 
with  respect  to  their  being  respectively 
allowed  and  permitted  to  be  and  con- 
tinue to  be  members  of  the  different  socie- 
ties and  congregations  of  the  sect;  and 
by  those  rules  and  regulations  a  member 
of  one  society  in  the  sect  could  not  be- 
come a  member  of  another  society  in  the 
sect  unless  the  leaders  or  elders  of  the 
first-mentioned  society  certified  that  the 
said  member  was  morally  and  otherwise 
fit  to  be  a  member  of  such  sect,  and  of  a 
societ3-  of  the  same;  and  the  defendant, 
being  a  member  of  the  sect,  and  of  the  so- 
ciety to  which  the  plaintiff  Margaret  then 
belonged,  and  well  knowing  the  premises, 
falsely  and  maliciously  spoke  and  pub- 
lished of  the  plaintiff  Margai'et,  and  of  her 


as  a  member  of  such  sect  and  society,  and 
in  the  presence  of  the  leaders  or  elders  and 
other  members  of  the  society  and  congre- 
gation which  the  plaintiffs  and  the  defend- 
ant had  just  before  then  been  attending, 
the  false  and  scandalous  words  follow- 
ing, in  the  Welsh  language,  (setting  them 
out;)  which  words,  being  translated  into 
the  English  language,  have  the  meaning 
and  effect  following,  and  were  so  under- 
sto(.'d  by  the  persons  to  whom  they  were 
so  spoken  and  published;  that  is  to  say, 
"Yon  [meaning  the  plaintiff  Robert  Rob- 
erts] have  got  for  a  wife  [meaning  the 
plalTitiff  Margaret]  as  great  a  whore  as 
any  in  the  tcjwn  of  Liverpool.  I  had  con- 
nection with  her  several  times,  the  last 
time  a  night  or  two  before  she  left  for 
Liverpool;"  meaning  thereby  that  the 
plaintiff  Margaret  had  been  guilty  of  such 
immoral  conduct  as  would  prevent  her  be- 
ing allowed  and  permitted  to  remain,  be- 
come, or  be  a  member  of  any  society  and 
congregation  of  the  sect  aforesaid;  and 
by  means  of  the  premises  the  plaintiff 
Margaret  was  not  allowed  or  permitted 
to  continue  or  be  anj'  longer  a  member  of 
the  society  and  congregation  aforesaid, 
and  was  turned  out  of  the  same,  and  the 
leaders  or  elders  of  tne  society'  refused  to 
certify  that  the  plaintiff  Margaret  was 
morally  or  otherwise  fit  to  be  a  member  of 
the  sect  or  of  any  society  or  congregation  of 
the  same;  and  the  plaintiff  Margaret,  be- 
ing desirous  of  becoming  a  member  of  a  so- 
ciety and  congregation  of  the  sect  in  Liver- 
pool, was  not  allowed  or  permitted  or 
able  to  become  a  member  of  the  society 
in  Liverpool,  and  was  prevented  from  at- 
tending religious  worship;  and  by  means 
of  the  premises  the  plaintiff  Margaret  be- 
came and  was  greatly  injured  in  her  good 
name  and  reputation,  and  became  sick 
and  ill,  and  greatly  distressed  in  body  and 
mind.  Averment,  that,  by  means  of  the 
pi'emises,  the  plaintiff  Robert  Roberts  had 
been  put  to  and  incurred  great  expenses 
in  and  about  nursing  the  plaintiff  Marga- 
ret, and  endeavoring  to  get  her  cured 
from  her  sickness,  illness,  and  distress  of 
mind,  and  had  sustained  divers  other  in- 
juries and  damages;  and  the  plaintiffs 
claimed  £500. 

Mclutyre,  for  defendant. 

The  words  in  the  declaration  are  not  ac- 
tionable without  special  damage.  All- 
sop  V.  Allsop,  5  Hurl.  &  N.  534;  Lynch  v. 
Knight,  9  H.  L.  Cas.  577.  And  no  special 
damage  is  alleged  sufficient  to  render  the 
words  actionable  by  reason  of  such  dam- 
age. The  allegation  that  the  plaintiff 
Margaret  was  injured  in  her  good  name 
and  rexjutation,  and   became  sick  and  ill 


GENERAL  PRINCIPLES. 


2» 


and  distressed  in  body  and  mind,  is  not 
sufficient.  AH.sop  v.  Allsop,  5  Hurl.  &  N, 
534.  [Cronipton  Hutton,  for  plaintiffs: 
That  is  admitted.]  Tlie  remaining  head 
of  special  damage,  that  she  was  not  al- 
lowed to  continue  a  member  of  the  socie- 
ty and  congregation  of  Calvinistic  Metho- 
dists, and  was  [)re vented  from  attending 
relifj;ious  worship,  is  not  temporal  or  pe- 
cuniary damage.  The  first  part  amounts 
to  no  more  tlian  that  she  was  excluded 
from  a.ssoeiating  with  particular  persons. 
It  is  not  alleged  that  she  was  a  teacher  in 
the  society  and  congregation,  or  that  she 
derived  any  special  advantage  from  being 
a  member  of  it.  As  to  the  otiier  j)art,  the 
elders  could  not  prevent  her  from  attend- 
ing the  chapel.  In  Bateman  v.  Lyall,  7  C. 
13.  (S.  S.)  OoS,  there  was  an  allegation  of 
losM  of  customers  by  the  husband  in  his 
business  in  consequence  of  the  words 
spoken  of  his  wife  by  the  female  defend- 
ant. 

Cromptnn  Hnttnn,  for  plaintiffs. 

Sufficient  special  damage  to  the  wife  is 
shown  for  which  the  husband  may  main- 
tain this  action.  If  the  special  damage 
must  be  i)ecuniary,  an  action  for  slander 
of  a  wife  never  could  be  maintained,  as 
the  damage  would  be  to  the  husband, 
not  to  the  wife.  An  action  will  lie  for 
words  spoken  by  which  a  woman  has  lost 
her  marriage.  Davis  v.  Gardiner,  4  Coke, 
lHh.  [BL.\cKBrK.\,  J. :  Marriage  has  al- 
ways been  considered  a  vakial)ie  consid- 
eration.] In  Lynch  v.  Knight,  9  H.  L. 
Cas.  577,  the  special  damage  relied  upon 
was  not  the  natural  and  probable  conse- 
quence of  the  words  spoken;  but  it  was 
the  oi)inion  of  Lord  Campbeu.,  at  page 
5M),  that  loss  of  consortium  or  conjugal 
society  would  give  a  cause  of  action  to  a 
wife  as  well  as  to  a  husband.  [Black- 
BL'KN,  J.:  Lord  Ckanwohth,  page  595, 
was  stronglj'  inclined  to  agree  in  that, 
though  Lord  Wknsleydai.e  wasof  a  differ- 
ent opinion.  Crcjmpton,  J. :  The  loss  of 
consortitiw  of  the  wife  has  always  been 
considered  a  temporal  damage  in  an  ac- 
tion 1)3'  the  husband  for  criminal  conversa- 
tion.] In  the  present  case  there  is  a  loss 
of  something  more  than  consortium 
vicinorum.  The  -wife  was  a  member  of  a 
religious  society  and  congregation,  and  as 
such  entitled  to  a  seat  in  the  chapel  be- 
longing to  that  society  and  congregation; 
but,  in  consequence  of  the  words  spoken 
by  the  defendant,  sheAvas  turned  out  of  it. 
[.Mclntyre:  It  is  not  alleged  that  she  was 
entitled  to  a  seat  in  the  chapel  without 
payment.  BlackblIrn,  J. :  Unless  she  has 
been  dei)rived  of  something  of  iiecuniary 
value.it  is  difficult  to  distinguish  the  pres- 
ent case  from  that  of  slander  of  a  chaste 
unmarried  woman.]  The  court  will  not 
extend  that  doctrine.  Value  is  attached 
to  social  advantages  and  position,  of 
which  the  comt  will  takenotice.  The  wife 
had  a  status  as  member  of  the  society' 
and  congregation,  which  she  has  lost. 
[t'ocKBLU.v,  C.  J. :  She  had  no  other  ben- 
efit from  it  except  attending  a  congrega- 
tional place  of  worship,  and  she  may  get 
that  benefit  whether  she  attends  as  a 
member  of  the  societj'  or  not.]  Aright  to 
a  seat  in  a  church  or  chapel  is  an  advan- 
tage of   which   the   law  will   take    notice. 


The  reason  why  the  loss  of  consortium 
vicinorum  is  not  sufficient  special  damage 
is  that  the  most  capricious  motives  may 
deprive  a  person  of  it.  Cora.  Dig.,  "Ac- 
tion upon  theCase  for  Defamation,"  D.  30. 

CocKBTRN,  C.  J.  No  cause  of  action  is 
shown  in  this  declaration,  as  it  does  not 
allege  special  damage  sufficient  to  make 
the  words  spoken  of  the  female  plaintiff 
actionable.  It  is  admitted  that  the  loss 
of  consortium  vicinorum  is  not  sufficient; 
and  I  am  of  opinion  that  the  loss  by  the 
female  plaintiff  of  membership  of  this  so- 
ciety and  congregation,  wliich  appears  to 
have  been  constituted  for  religious  or  spir- 
itual purposes,  amounts  at  most  to  no 
more  than  the  loss  of  the  merely'  nominal 
distinction  of  being  able  to  call  her.self  a 
member  of  it.  It  does  not  appear  that 
any  real  or  material  advantages  attach 
to  membership  ;  such  as  loss  of  seat  in  the 
chapel,  or  of  the  opportunity  of  attending 
divine  worship  there.  If,  by  reason  of  the 
words  spoken,  thefemale  plaintiff  had  been 
excluded  from  the  meetings  for  religious 
worship,  or  from  anything  substantial 
which  by  right  attached  to  membership 
of  the  society,  I  should  be  disposed  tohf)ld 
that  it  was  sufficient  special  damage.  I 
think  that  to  prevent  a  woman  whose 
character  for  chastity  is  assailed  from 
bringing  an  action  for  the  purjiose  of  vin- 
dicating it  is  cruel;  but,  as  the  law  at 
present  stands,  such  an  action  is  not  main- 
tainable, unless  it  be  shown  that  the  loss 
of  somesubstantialor  material  advantage 
has  resulted  from  the  speaking  of  the 
words.  That  is  not  shown  in  this  decla- 
ration, and  therefore  I  reluctantly  hold 
that  the  demurrer  is  good.  If,  upon  fur- 
ther inquiry,  anything  can  be  found 
amounting  to  such  special  damage  as  the 
law  requires,  theplaintiffs  maj'  have  leave 
to  amend  their  declaration. 

CnoMPTOX,  J.  On  the  last  observation 
made  by  tlie  lord  chief  justice  I  wish  to  re- 
mark that  the  amendment  should  be  im- 
mediate, so  that  thecause  ma.v  be  tried  at 
the  coming  assizes.  I  agree  that  the  pres- 
ent case  falls  uithin  the  rule  that  the  loss 
of  consortium  vicinorum  is  not  sufficient 
special  damage.  Here  is  no  loss  of  a 
temporal  nature;  or,  if  there  be  any,  it  is 
merely  nominal.  Though  I  wish  the  law 
were  different  in  the  case  of  words  affect- 
ing the  chastity  of  women,  yet  the  line 
must  be  drawn  somewhere  between  words 
which  are  and  words  which  are  not  ac- 
tionable; and,  if  we  held  that  the  action 
for  slander  could  be  supported  b.v  the  alle- 
gation that  the  plaintiff  had  suffered 
some  nominal  special  damage,  we  must 
apply  that  doctrine  to  all  kinds  of  less  dis- 
l)araging  words,  and  should  thereby  en- 
courage actions  which  ought  not  to  be 
brought,  as  for  saying  that  a  person  did 
some  disreputable  act,  though  not  essen- 
tially criminal.  My  only  doubt  is  wheth- 
er the  being  prevented  from  attending  re- 
ligious worship  is  sufficient  special  dam- 
age; but.  if  it  was  conducted  in  a  chapel, 
the  female  plaintiff  could  not  be  prevented 
from  attending  and  occupying  a  seat  there, 
especially  if  she  paid  for  her  seat.  We  do 
not,  however,  know  how  that  is;  it  is  not 


'SO 


LAW  OF  TORTS. 


even  stated  that  this  society  had  a  chapel. 
The  special  damage  alleged  is  of  a  nominal 
nature,  and  therefore  our  judgment  must 
be  for  the  defendant. 

Bi.ACKBUKN.  J.  The  law  upon  the  sub- 
jeft  of  disparaging  words  spol<en  of  other 
persons  is  not  in  a  satisfactory  state. 
For  words  written  an  action  is  maintaina- 
ble, though  possibly  not  more  than  one 
farthing  damages  could  be  obtained; 
whereas  for  words  spoken  imputing  un- 
chastity  to  a  woman  no  action  can  be 
maintained  unless  special  damageis  shown, 
tor  which  purpose  there  must  be  material 
injui-y  to  the  interest  of  the  person  slan- 
dered. What  is  here  alleged  is  no  more 
tlian  loss  of  the  consortium  vicinoruui. 

Judgment  for  the  defendant. 

(The  rule  of  the  common  law,  as  declared  in  this 
case,  has  been  changed  by  statute  in  many  states 
of  this  country.) 

(L.  R.  1  C.  P.  564. ) 
Smith  v.  Thackerah  et  ah 
{Court  of  Common  Pleas.    May  25, 1860.) 
Adjoikixg  Land-Owxers— Lateral  Support. 

Defendants  dug  a  well  on  tneir  own  land,  near 
land  of  plaintiff,  thereby  causing  his  land  to 
sink,  so  that  a  building  recently  erected  by  him 
thereon  was  injured;  but  there  would  have  been 
no  appreciable  damage  to  him  if  the  building  had 
not  been  on  the  lan^d.  Held,  that  plaintiff  had 
no  right  of  action. 

Rule  to  show  cause. 

Action  by  Smith  against  Thackerah  and 
another.  The  declaration  alleged  that 
the  plaintiff  was  possessed  of  certain  land, 
and  tlie  land  received  lateral  support  from 
certain  land  adjoining  thereto ;  and  the 
defendants  dug  and  made  on  this  adjoin- 
ing land  an  excavation  or  well  near  to  the 
land  of  the  plaintiff,  and  the  defendants 
thereby,  and  for  want  of  keeping  and  con- 
tinuing the  sides  of  the  well  shored  up,  or 
otherwise  preventing  the  consequences 
hereinafter  mentioned,  wrongfully  de- 
prived the  land  of  the  plaintiff  of  its  sup- 
port, whereby  the  land  of  the  i)laintiff 
sank  and  gave  way,  and  divers  walls, 
buildings,  and  premises  of  the  plaintiff  on 
the  land  sank  and  were  damaged,  where- 
by the  plaintiff  was  put  to  great  expense, 
etc.  Pieas,  nt)t  guilty  and  not  possessed. 
At  tlie  trial  before  Eri-ic,  C.  J.,  it  was 
proved  that  the  plaintiff  was  possessed 
of  a  piece  of  land  on  which  a  building  had 
been  recently  erected,  and  that  the  defend- 
ants, who  were  neighboring  land-owners, 
dug  a  well  on  their  own  land  near  to  that 
of  the  plaintiff,  and  afterwards  filled  up 
the  well  witli  such  loose  earth  that  the 
ground  round  it  sank,  and  the  plaintiff's 
building  was  injured,  causing  damage  to 
the  amount  of  £15.  The  jury  found,  in 
answer  to  questions  by  the  chief  justice, 
that  the  land  of  the  plaintiff  would  have 
sunk  if  there  had  been  no  building  on  it, 
and  that  some  particles  of  sand  from  it 
would  have  fallen  onto  the  defendants' 
property,  but  that  the  plaintiff  would 
laave  suffered  no  appreciable  damage.  A 
verdict  was  entered  for  the  defendants, 
with  leave  to  the  plaintiff  to  move  to  en- 
ter the  verdict  for  such  sum,  under  £15,  as 
the  court  should   direct,   on   the  ground 


that  the  facts  proved  at  the  trial  entitled 
the  plaintiff  to  a  verdict  without  proof  of 
any  pecuniary  damage. 

Robinson,  Serj.,  having  obtained  a  rule 
nisi  pursuant  to  the  leave  reserved,  Joyce 
showed  cause.  If  the  buildings  had  not 
been  on  the  land  the  damage  would  have 
been  inappreciable,  and  there  would  have 
been  no  right  of  action.  The  right  of  ac- 
tion does  not  arise  when  the  adjacent 
ground  is  removed,  but  only  when  the  in- 
jurv  happens  to  the  plaintiff's  land.  Bo- 
nomi  v.  Backhouse,  El.  Bl.  &  El.  622,  64(5, 
27  Law  J.  Q.  B.  378,  28  Law  J.  Q.  B.  378; 
in  the  house  of  lords,  9  H.  L.  Cas.  503,  34 
Law  J.  Q.  B.  18L 

Robinson,  Serj  ,  and  Joseph  Sbarpe,  in 
support  of  the  rule. 

The  defendants  had  no  right  to  cause 
the  plaintiff's  land  to  sink,  and,  the  jury 
having  found  that  the  land  would  have 
sunk  even  if  the  plaintiff  had  not  erected 
any  buildings  on  it,  the  plaintiff  is,  at 
least,  entitled  to  nominal  damages.  Ash- 
by  V.  White,  1  Smith  Lead.  Cas.  (5th  Ed.) 
216;  Brown  v.  Robins.  4  Hurl.  &  N.  186.  28 
La  w  J.  Exch.  250, — shows  that  he  is  entitled 
to  recover  compensation  for  the  fall  of  the 
house,  which  was  an  injury  naturally  re- 
sulting from  the  defendants'  wrongful  act. 

Erle,  C.  J.  I  am  of  opinion  that  this 
rule  should  be  discharged.  T'here  is  no 
doubt  that  a  right  of  action  accrues 
whenever  a  person  interferes  with  his 
neighbor's  rights,  as,  for  example,  by 
stepping  on  his  land,  or,  as  in  the  case  of 
Ashiiy  V.  White,  1  Smith  Lead  Cas.  (5th 
Ed.)  216, interfering  with  his  right  to  vote, 
and  this  though  no  actual  damage  may 
result.  But  for  a  man  to  dig  a  hole  in  his 
own  land  is  in  itself  a  perfectly  lawful  act 
of  ownership,  and  it  only  becomes  a 
wrong  if  it  injures  his  neighbor;  and, 
since  it  is  the  injury  itself  which  gives  rise 
to  the  right  of  action,  there  can  be  no 
right  of  action  unless  the  damage  is  of 
an  appreciable  amount.  A  person  may 
build  a  chimney  in  front  of  your  drawing- 
room,  and  the  smoke  from  it  may  annoy 
you,  or  he  may  carry  on  a  trade  next 
door  to  your  house,  the  noise  of  which 
may  be  inconvenient;  but,  unless  the 
smoke  or  noise  be  such  as  to  do  you  ap- 
preciable damage,  j'ou  have  no  right  of 
action  against  him  ff)r  what  is  in  itself  a 
lawful  act.  In  the  case  of  Smelting  Co.  v. 
Tipping,  11  H.  L.  Cas.  642,  35  Law  J.  Q.  B. 
66,  in  which  the  defendant  had  set  up 
some  chemical  works,  the  house  of  lords 
held  that,  if  the  noxious  vapors  did  not 
cause  material  damage  to  the  plaintiff,  he 
had  no  cause  of  action.  In  the  present 
case,  the  digging  the  well  and  filling  it  up 
again  were  in  themselves  perfectly  lawful 
acts,  and  the  jury  have  found  that  they 
did  no  sensible  damage  to  the  plaintiff, 
and  he  has  therefore  no  right  of  action. 

Byi.rs,  J.  I  am  of  the  same  opinion. 
In  actions  for  a  trespass,  the  trespass  it- 
self is  a  sufficient  cause  of  action.  But  iu 
actions  for  indirect  injuries  like  the  pres- 
ent, the  judgment  (jf  the  house  of  lords  in 
Backhouse  v.  Bonomi,  9  H.  L.  Cas.  503,  34 
Law  J.  Q.  B.  181,  shows  that  there  is  no 
cause  of  action  if  there  be  no  damage,  anil 


GENERAL  PRINCIPLES. 


31 


I  cannot  distinguish  between  no  apprecia- 
ble damage  to  the  land  in  its  natural  state 
and  no  damage  at  all. 

Montague  Smith,  J.  I  am  of  the  same 
opinion.  Tlie  mere  subsidence  of  the  sur- 
face of  the  soil  is  not  necessarily  an  injury, 
and  Ave  are  bound  by  the  verdict  of  the 
jury,  who  found  that  in  fact  no  apprecia- 
ble damage  would  have  occuried  if  these 
new  buildings  had  not  been  on  the  laud. 

Rule  discharged. 


(6  Johns.  ISl.) 

Upton  v.  Vail. 

(Supreme  Court  of  New  York.    Albany.     Aug., 
1810. ) 

FRArD — Represextatioxs  as  to  Credit  of  Third 
Person — Statute  of  Frauds. 
An  action  may  be  maintained  for  false  repre- 
sentations by  defendant  to  plaintiff  as  to  the  solv- 
ency of  a  third  person,  whereby  plaintiff  was  in- 
duced to  give  credit  to  the  latter,  and  lost  his 
debt.  Fraud  or  deceit,  together  with  damage,  is 
a  good  cause  of  action.  And  such  an  action  will 
lie,  though  the  representation  was  merely  oral; 
the  case  is  not  within  the  statute  of  frauds. 

Certiorari  to  review  a  judgment  of  a 
justice's  court. 

Action  on  the  case  brought  by  Vail 
against  Upton  for  alleged  fal^se  and  deceit- 
ful representations  by  defendant,  Upton, 
that  one  Brown  was  a  man  of  property, 
whereby  plaintiff  was  induced  to  give 
credit  to  Brown,  and  afterwards  lost  the 
debt.  At  the  trial  before  a  justice  of  the 
.peace  it  appeared  that  defendant,  Upton, 
had  a  judguient  bond  against  Brown, 
dated  March  fi,  ISOS,  for  $."»50.  On  March 
10,  isOS,  defendant  and  Brown  went  to 
plaintiff,  and  Brown  applied  to  plaintiff 
for  certain  goods  on  credit ;  and,  on  plain- 
tiff inciuiring  of  defendant  as  to  Brown's 
solvency,  defendant  said  he  was  good,  as 
good  as  any  man  in  the  c<juntiy,  for  the 
amount  of  the  price  of  the  goods.  Plain- 
tiff thereupon  gave  Brown  the  goods  on 
<*redit,  and  took  his  note  therefor,  paya- 
ble on  the  1st  day  of  the  following  Octo- 
ber. On  March  L'5,  1808,  defendant  caused 
an  execution  to  be  issued  on  his  judgment, 
which  was  levied  on  all  the  property  of 
Brown,  including  the  goods  so  obtained 
from  plaintiff;  and  thereafter  said  goods 
were  sold,  under  the  execution  with  the 
other  property  levied  on,  as  the  property 
of  Brown,  before  the  note  given  by  Brown 
had  become  due.  The  justice  rendered 
judgment  for  plaintiff.  Defendant  brought 
certiorari  to  review  the  judgment.  The 
cause  was  submitted   without   argument. 

Kr:NT,  C.  J.  Deceit,  in  the  recommenda- 
tion of  Brown,  was  the  gist  of  this  action. 
It  was  a  conclusion  which  the  justice  was 
to  draw  from  the  facts,  and  I  think  the 
facts  did  warrant  that  conclusion.  There 
is  no  cause  to  disturb  the  judgment  be- 
low, on  the  ground  that  it  is  not  supported 
by  proof.  The  judgment  of  the  justice 
was  here  a  substitute  for  the  verdict  of  a 
jury,  and  the  facts  would  well  have  justi- 
fied a  jury  to  have  drawn  the  inference  of 
a  premeditated  fraud.  But  one  of  the 
points  stated  on  the  part  of  the  plaintiff 
is  that  this  action  will  not  lie  at  all  with- 
out   showing    some    note    t)r    memoran- 


dum in  writing  to  charge  the  party,  and 
this  objection  was  made  at  the  trial  below. 
We  have  never  expressly  decided  in  this 
court  that  the  action  would  lie.  In  Ward 
V.  Center,  .3  .Icjhns.  271,  the  question 
was  incidentallj'  raised,  but  no  opinion 
expressed  by  the  court,  because  the  mo- 
tion in  that  case  was  f(jr  a  new  trial,  and 
not  n  arrest  of  judgment.  The  case  of 
Pasley  v.  Freeman,  3  Term  R.  51,  (de- 
cided in  the  king's  bench  so  late  as  the 
.vear  1789,)  is  the  first  direct  authority  in 
the  English  courts  in  support  of  the  ac- 
tion. I  have  carefully  examined  the  rea- 
soning of  the  judges  in  that  case,  and  in 
the  sub.sequent  cases,  which  go  to  ques- 
tion or  support  the  soundness  of  that  de- 
cision, and  I  profess  my  approbation  of 
the  doctrine  on  which  it  was  decided. 
The  case  went  not  upon  any  new  ground, 
but  upon  the  aijplication  of  a  principle  of 
natural  justice,  long  recognized  in  the  law, 
that  fraud  or  deceit,  accompanied  with 
damage,  is  a  good  cause  of  action.  This 
is  as  just  ana  permanent  a  principle  as  any 
in  our  whole  jurisprudence.  The  only 
plausible  objection  to  it  is  that  in  its  ap- 
plication to  this  case  it  comes  within  the 
mischiefs  which  gave  rise  to  the  statute 
of  frauds,  and  that,  therefore,  the  repre- 
sentation ought  to  be  in  writing.  But 
this,  I  apprehend,  is  an  objection  arising 
from  policy  and  expediency ;  for  it  is  cer- 
tain that  the  statute  of  frauds,  as  it  now 
stands,  has  nothing  to  do  with  the  case. 
The  case  of  Pasley  v.  Freeman  has  re- 
ceived a  decided  sanction,  by  a  succession 
of  learned  judjres,  in  the  several  courts  of 
Westminster  Hall;  and  I  observe  that  the 
action  is  sustained  without  contradiction 
in  the  courts  in  Connecticut.  Eyre  v. 
Dunsford,  1  East. 318;  Haycraft  v.  Creasy, 
2  East,  92;  Tapp  v.  Lee,  3  Bos.  «&  P.  307 ; 
Hamar  v.  Alexander,  2  Bos.  &  P.  241; 
Thompson  v.  Bond,  1  Camp.  4;  Richard- 
son V.  Smith,  Id.  277;  Wise  v.  Wilcox,  1 
Day,  22.  In  (jne  of  the  cases.  Sir  James 
Mansfield  says:  "I  am  far  from  wish- 
ing to  sustain  an  action  simpiy  upon 
misrepresentation,  but  there  never  was 
a  time  in  the  English  law  where  an  action 
might  not  have  been  maintained  against 
the  defendant  for  this  gross  fraud. "  Lord 
Ei.DON  has,  indeed,  expressed  his  dissat- 
isfaction with  the  case  of  Pasley  v.  Free- 
man, and  he  thought  that  the  statute 
of  frauds  and  perjuries  ought  to  be  ap- 
plied to  the  case.  Evans  v.  Bicknell,  6 
Ves.  180.  He  is,  undoubtedly,  a  very  re- 
spectable authority  ;  but,  as  far  as  mere 
authority  goes,  the  preponderance  is 
vastly  on  the  other  side.  The  courts  of 
law  have  l)een  uniformly*  against  him, 
and  even  his  successor.  Lord  Ehskine, 
has  declared  himself  in  the  strongest 
terms  in  favor  of  the  suit.  "As  to  the 
danger  from  a  single  witness,  "he  ob- 
served, "is  not  one  sufficient  for  convic- 
tion of  a  capital  crime?  Thar  objection 
goes  to  the  very  root  of  the  law,  which 
is  uniform  in  principle  and  practice,  with 
the  single  exception  of  the  case  of  perjury, 
as  there  is  oath  against  oath.  The  case 
of  Pasley  v.  Freeman,  therefore,  stands 
upon  the  clearest  principles  of  jurispru- 
dence, and  has  no  connection  with  the 
statute  of  frauds,    which    applies    where 


32 


LAW  OF  TOUTS. 


one  man  undertakes  for  the  debt  of  anoth- 
er. "  Clifford  V.  Brooke,  13  Ves.  133.  But, 
independent  of  the  English  cases,  1  place 
my  opinion  upon  the  broad  doctrine  that 
fraud  and  damage,  coupled  together, 
will  sustain  an  action.  This  is  a  princi- 
ple of  universal  law,  and  I  consider  it  as 
deserving  of  particular  notice,  and,  in  a 
question  depending  upon  general  princi- 
ple, as  adding  no  inconsiderable  weight  to 
the  accumulation  of  authority,  that  the 
same  doctrine  is  laid  down  by  Pothier. 
Trait6  du  Contrat  de  Mandat,  art.  21. 
It  is  drawn  by  him  from  the  text  of  the 
civil  law,  whei'e  it  is  supported  by  the 
sanction  of  Illpian.  Dig.  50,  17,47.  Consilii 
von  iraudulenti  nulla  obligatio  est,  cwte- 
runi  si  dolus  et  calliJitas  intercessit,  de 
dolo  actio  conipetit.  "If,  "says  Pothier, 
"you  had  only  recommended    Peter  to   his 


creditor  as  honest  and  able  to  pay,  this 
was  but  advice,  and  not  anj- obligation  ; 
and  if  Peter  was,  at  the  time,  insolvent, 
you  are  not  bound  to  indemnify  the  cred- 
itor for  the  sum  which  he  loaned  to  Peter 
by  means  of  your  advice,  and  which  he 
has  lost.  Nemo  ex  consilio  obli^atur. 
The  rule  is  the  same  if  the  advice  was  giv- 
en rashly  and  indiscreetly,  without  being 
duly  informerl  of  the  circumstances  of 
Peter,  provided  it  was  sincerely  given. 
Liberuni  est  cuique  apud  se  exnlorare  an 
expediat  sibi  consilium.  But  il  *he  rec- 
ommendation was  made  in  bad  faith,  and 
with  knowledge  that  Peter  was  insolvent, 
in  this  case  you  are  bound  to  indemnify 
the  creditor.  "  The  court  are  accordingly 
of  opinion  that  the  judgment  below  must 
be  affirmed. 
Judgment  affirmed. 


(See,  also,  Ming  v.  Woolfolk,  116  U.  S.  599,  6  Sup.  Ct.  Rep.  489 :  Tryon  v.  Whitmarsh,  1  Mete. 
[Mass.]  1;  Benton  v.  Pratt,  3  Wend.  385;  Taylor  v.  Guest,  58  N.  Y.  262;  Backhouse  v.  Bonomi,  9H.  L. 
Gas.  503.) 


In  actions  of  tort,  damages  may  be  awarded  for  the  proximate,  but 
not  for  the  remote,  consequences  of  the  tortious  act — Nature  of 
this  distinction. 


(3  Q.  B.  Div.  837., 

Clark  v.  Chambers. 

{Queen'' s  Bench  Division.    April  15,1878.) 

Negligence  —  Pkoximate  or  Kemote  Conse- 
quences. 
Land  used  by  defendant  as  a  place  for  athletic 
sports  abutted  on  a  private  road,  consisting  ol  a 
carriage-way  and  footway,  and  leading  also  to 
premises  of  others.  To  prevent  persons  driving 
vehicles  up  to  the  fence  surrounding  his  prem- 
ises, and  overlooking  the  sports,  defendant  placed 
a  barrier  across  the  road,  but  left  in  the  middle 
of  the  carriage-way  a  space  through  which  vehi- 
cles could  pass,  which  was  closed  by  a  pole  at 
times  when  the  sports  were  going  on.  A  part  of 
the  barrier,  armed  with  spikes,  was  removed 
from  the  carriage-way  by  some  person  other  than 
defendant,  without  his  authority,  and  was  placed 
in  an  upright  position  across  the  footpath.  Plain- 
tiff, passing  along  the  road  at  night,  from  one  of 
the  houses  to  which  it  led,  passed  safely,  feeling 
his  way,  through  the  opening  in  the  middle  of  the 
barrier,  and.  being  wholly  unaware  that  there 
was  any  obstruction  on  the  footpath,  as  it  was 
much  too  dark  to  see,  turned  towards  it,  and  his 
eye  came  into  contact  with  one  of  the  spikes,  and 
was  injured.  In  an  action  by  him  against  de- 
fendant thei-efor,  it  was  admitted  that  the  erec- 
tion of  the  barrier  by  defendant  was  wrongful, 
and  that  plaintiff  was  lawfully  using  the  road ; 
and  the  jury  found  that  the  use  of  that  part  of 
the  barrier  armed  with  spikes  was  dangerous  to 
persons  using  the  road.  Held,  that  defendant  was 
liable  for  the  injury  so  occasioned  to  plaintiff, 
notwithstanding  the  fact  that  the  immediate 
cause  of  the  accident  was  the  act  of  another,  in 
removing  the  dangerous  instrument  from  the  car- 
riage-way, where  defendant  had  placed  it,  to  the 
footpath. 

Reserved  case. 

Action  by  Clark  against  Chambers  for 
personal  injuries  to  plaintiff,  alleged  to 
have  been  caused  by  defendant's  negli- 
gence. At  the  trial,  before  the  lord  chief 
justice,  the  case  was  reversed  for  further 
consideration. 

Argued  before  Cockbukn.C.  J.,  and  Man- 

I8TY,  J. 


Mr.  iyillis,Q.  C,  and  Mr.  Glyn,  for  plain- 
tiff.    Mr.  Uannen,  for  defendant. 

CocKBURN,  C.  J.  This  is  a  case  of  con- 
siderable nicety,  and  which,  so  far  as  the 
precise  facts  are  concerned,  presents  itself 
for  the  first  time.  The  defendant  is  in  the 
occupation  of  jjremises  which  abut  on 
a  private  road  leading  to  certain  other 
premises  as  well  as  to  his;  it  consists  of 
a  carriage-road  and  a  footway.  Tliesoil  of 
both  is  the  property  of  a  different  owner; 
the  defendant  has  no  interest  in  it  beyond 
the  right  of  way  to  and  from  his  prem- 
ises. The  defendant  uses  his  premises  as 
a  place  where  athletic  sports  are  carried 
on  by  persons  resorting  thereto  for  that 
purpose  for  tiieir  own  amusement.  His 
customers,  finding  themselves  annoyed  by 
I)ersons  coming  along  the  road  in  ques- 
tion in  carts  and  vehicles,  and  stationing 
themselves  opposite  to  his  grounds  and 
overlooking  the  sports,  the  height  of  the 
carts  and  vehicles  enabling  them  to  see 
over  the  fence,  the  defendant  erected  a 
barrier  across  the  road  for  the  purpose  of 
preventing  vehicles  from  getting  as  far  as 
his  grounds.  This  barrier  consisted  of  a 
hurclle  set  up  lengthways  next  to  the  foot- 
patl) ;  then  two  wooden  barriers  armed 
with  spikes,  commonly  called  "clievaux- 
de-frise;  "  then  there  was  left  an  open  space 
through  which  a  vehicle  could  pass;  then 
came  another  large  hurdle,  set  up  length- 
ways, which  blocked  up  the  rest  of  the 
road.  At  ordinary  times,  the  space  be- 
tween the  two  divisions  of  the  barrier 
was  left  open  for  vehicles  to  pass  which 
might  be  going  to  any  of  the  other  prem- 
ises to  which  the  road  in  question  led. 
But,  at  the  times  when  the  sports  were 
going  on,  a  pole  attached  by  suitable  ap- 
paratus was  carried  across  from  the  one 
part  of  the  barrier  to  the  other,  and  so 
the  road  was  effectually  blocked.    Among 


GENERAL  PRINCIPLES. 


33 


the  houses  and  arounds  to  which  tliis  pri- 
vate road  led  was  that  of  a  Mr.  Brueii. 
On  the  evening  on  which  the  accident 
which  gave  rise  to  the  i)resent  action  oc- 
cnrred,  the  plaintiff,  who  occiipi<Ml  prem- 
ises in  the  immediate  neighborliood,  ac- 
companied Mr.  Brnen,  by  the  invitation 
of  tlie  latter,  to  Brnen's  hoxise.  It  was 
extremely  dark,  but,  being  aware  of  the 
barrier  and  the  opening  in  it.  they  found 
the  opening,  the  pole  not  being  set  across 
it,  and  passed  through  it  in  safety  ;  but  on 
his  return  ,  later  in  the  evening,  the  plain- 
tiff was  not  equally  fortunate.  It  appears 
that,  in  the  course  of  that  day  or  the  day 
previous,  some  one  had  removed  one  of 
the chevnux-flc-frise  hurdles  from  the  place 
where  it  had  stood,  and  had  placed  it  in 
an  upright  position  across  the  footpath. 
Coming  back  along  the  middle  of  the 
road,  the  plaintiff,  feeling  his  way,  passed 
safel3'  through  the  opening  in  the  center 
of  the  barrier;  having  done  which,  being 
wholly  unawai-e,  it  being  much  too  dark 
to  see,  that  there  was  any  obstruction  on 
the  footpath,  he  turned  onto  the  latter, 
intending  to  walk  along  it  the  rest  of  the 
way.  He  had  advanced  onlj'  two  or 
throe  steps,  when  his  eye  came  into  collis- 
ion with  one  of  the  spikes,  the  effect  of 
which  was  that  the  eye  was  forced  out 
of  its  socket.  It  did  not  appear  by 
Avhom  theclievnnx-(le-frisehur(i\(i  had  been 
thus  removed,  but  it  was  expressly  found 
by  the  jury  that  this  was  not  done  by  the 
defendant  or  by  his  authority.  The  ques- 
tion is  whether  the  defendant  can  be  held 
liable  for  the  injury  thus  occasioned.  It 
is  admitted  that  what  the  defendant  did 
in  erecting  this  barrier  acrr)ss  the  road 
was  unauthorized  and  wrongfiil,  and  it  is 
not  dis{)uted  that  the  plaintiff  was  law- 
fully using  the  road.  There  is  no  ground 
for  imputing  to  him  any  negligence  con- 
tributing to  the  accident.  The  jurj"-  have 
expressly  found,  in  answer  to  a  question 
put  to  them  by  me,  that  the  use  of  the 
chevniix-fle-trise  in  the  road  was  danger- 
ous to  tiie  safety  of  persons  using  it.  The 
ground  of  defen.se  in  point  of  law  taken  at 
the  trial  and  on  the  argument  on  the  rule 
was  that,  althoiigh,  if  the  injury  had  re- 
sulted from  the  use  of  the  chevaux-de-friae 
hurdle,  as  placed  by  tli(;  defendant  on  the 
road,  the  defendant,  on  the  facts  as  admit- 
ted or  as  found  by  the  jury,  might  have 
been  liable,  yet,  as  the  immediate  caiise 
of  the  accident  was  not  the  act  of  the  de- 
fendant, but  that  of  the  person,  whoever 
he  may  have  been,  who  removed  the 
spiked  hurdle  from  where  the  defendant 
had  fixed  it,  and  placed  it  across  the  foot- 
way, the  defendant  could  not  be  held  lia- 
ble for  an  injury  resulting  from  the  act  of 
another.  On  the  part  of  the  plaintiff  it 
was  contended  that,  as  the  act  of  the  de- 
fendant in  placing  a  dangerous  instrument 
on  the  road  had  been  the  primary  cause 
of  the  evil,  by  affording  the  occasion  for 
its  being  removed  and  placed  on  the  foot- 
path, and  so  causing  the  injury  to  the 
plaintiff,  he  was  responsible  in  law  for  the 
consequences. 

Numerous  authorities  were  cited  in  sup- 
port of  this  position.     The  first  is  the  case 
of  Sett  V.  Shepherd.  3   Wils.  403,  2    \V.  Bl. 
892.     In   that   case  the  defendant  threw  a 
CHASE — 3 


lighted  squib  into  a  market-house  where 
several  persons  were  assembled.  It  fell 
upon  a  standing,  the  owner  of  which,  in 
self-defense,  took  it  up  and  threw  it  across 
the  market-house.  It  fell  upon  another 
standing,  the  owner  of  which,  in  self-de- 
fense, took  it  up  and  threw  it  to  another 
part  of  the  market-house,  and  in  its 
course  it  struck  the  plaintiff,  and  ex- 
ploded, and  put  out  his  eye.  The  defend- 
ant was  held  lialde,  although,  without 
the  intervention  of  a  third  persf)n,  the 
squib  would  not  haveijijured  the  i)laintiff. 

In  Dixon  v.  Bell,  5  Maiile  &  S.  lilS,  the 
defendant,  having  left  a  loaded  gun  with 
another  man.  sent  a  young  girl  to  fetch  it, 
with  a  message  to  the  man  in  whose  cus- 
tody it  was  to  remove  the  i^riming,  which 
the  latter,  as  he  thought,  did,  but,  as  it 
turned  out,  did  not  do  effectually.  The 
girl  brought  it  home,  and  thinking  that, 
the  priming  having  been  removed,  the 
gun  could  not  go  off.  pointed  it  at  theplain- 
tiff's  son,  a  child,  and  pulled  the  trigaer. 
The  gun  went  off.  and  injured  the  child. 
The  defendant  was  held  liable,  "as  by  this 
want  of  care,  "  says  Lord  Ellenijokough, 
—that  is,  by  leaving  the  gun  without 
drawing  the  charge  or  seeing  that  the 
priming  had  been  properly  removed, — "the 
instrument  was  left  in  a  state  capable  of 
doing  mischief,  the  law  will  hold  the  de- 
fendant responsible.  It  is  a  hard  case,  un- 
doubtedly-, but  1  think  the  action  is  main- 
tainable. " 

In  Ilott  V.  Wilkes,  3  Barn.  &  Aid.  304.— 
the  well-known  case  as  to  spring-guns, — 
it  became  necessary  to  determine  how 
far  a  person  setting  spring-guns  would  be 
liable  to  a  person  injured  by  such  a  gun 
going  off,  even  though  such  person  were 
a  trespasser,  inasmuch  as  the  plaintiff, 
having  had  notice  that  spring-guns  were 
set  in  a  particular  wood,  had  voluntarily 
exposed  him.self  to  the  danaer.  But  both 
Mr.  Justice  B.a.yley  and  Mr.  Justice  Hol- 
ROYD  appear  to  have  thought  that  with- 
out such  notice  the  action  would  have 
lain,  the  use  of  such  instruments  being  un- 
reasonably disproportioned  to  the  end  to 
be  obtained,  and  dangerous  to  the  lives 
of  persons  who  might  be  innocently  tres- 
passing. Looking  to  their  language,  it 
can  scarcely  be  doubted  that  if,  instead  of 
injuring  the  plaintiff,  the  gun  which  he 
caused  to  go  off  had  struck  a  person  pass- 
ing lawfully  along  a  path  leading  through 
the  wood,  they  wouhl  have  held  the  de- 
fendant liable. 

In  Jordin  v.  Crump,  S  Mees.  &W.7.S2,  the 
use  of  dog-spears  was  held  not  illegal; 
but  there  the  injury  done  to  the  plaintiff's 
dog  was  alone  in  (luestion.  If  the  use  of 
such  an  instrument  had  been  productive 
of  injury  to  a  human  being,  the  result 
might  have  been  different. 

In  Illidge  v.  Good  win.  5  Car.  &  P.  192, 
the  defendant's  cart  and  horse  wei'e  left 
standing  in  the  street  without  any  one  to 
attend  to  them.  A  person  passing  by 
whipped  the  horse,  which  caused  it  to 
back  the  cart  against  the  plaintiff's  win- 
dow. It  was  urged  that  the  man  who 
whipped  the  horse,  and  not  the  defendant, 
was  liable.  It  was  also  contended  that 
the  bad  management  of  the  plaintiff's 
i  shopman  had  contributed  to  the  accident. 


84 


LAW  OF  TORTS. 


But  TiXDAL.  C.  J.,  ruled  that,  even  if  this 
were  believed,  it  would  not  avail  as  a  de- 
fense. "If,"  he  says,  "a  man  chooses  to 
leave  a  cart  standing  on  the  street,  he 
must  take  the  risk  of  any  mischief  that 
mav  be  done. " 

Lynch  v.  Xurdln,  1  Q.  B,  29,  is  a  still 
more  striking  case.  There,  as  in  the  for- 
mer case,  the  defendant's  cart  and  horse 
had  been  left  standing  unattended  in  the 
street.  The  plaintiff,  a  cliild  of  seven 
years  of  age,  placing  in  the  street  with 
other  boys,  was  getting  into  the  cart 
when  anotlier  boj'  made  the  horse  move 
on.  The  plaintiff  was  thrown  down,  and 
the  wljeel  of  the  cart  went  over  his  leg 
and  fractured  it.  A  considered  judgment 
was  delivered  by  Lord  De.nman.  He  says : 
"It  is  urged  that  the  mischief  was  not 
produced  by  the  mere  negligence  of  the 
servant  as  asserted  in  the  declaration, 
but,  at  most,  by  that  negligence  in  combi- 
nation with  two  other  active  causes, — the 
adA-ance  of  the  horse  in  consequence  of  his 
being  excited  by  the  other  boy,  and  the 
plaintiff's  improper  conduct  in  mounting 
the  cart,  and  committing  a  trespass  on 
the  defendant's  chattel.  On  the  former  of 
these  two  causes  no  great  stress  was  laid, 
and  I  do  not  apprehend  that  it  can  be 
necessary  to  dwell  on  it  at  any  length. 
For  if  I  am  guilty  of  negligence  in  leaving 
anything  dangerous  Avhere  I  know  it  to 
be  extremely  proiiable  that  some  other 
person  will  unjustifiablj'  set  it  in  motion 
to  the  injury  of  a  third,  and  it  that  in- 
jury should  be  so  brought  about,  I  pre- 
sume that  the  sufferer  might  have  redress 
by  action  against  both  or  either  of  the 
two,  but  unquestionably  against  the 
first."  And  then,  by  way  of  illustration, 
the  chief  justice  puts  the  case  of  a  game* 
keeper  leaving  a  loaded  gun  against  the 
wall  of  a  play-ground  where  school-boys 
were  at  play,  and  one  of  the  boys  in  play 
letting  it  off  and  woimding  another.  "I 
think  it  will  not  be  doubted,"  saj's  Lord 
Denman,  "that  the  game-keeper  must  an- 
swer in  damages  to  the  wounded  party." 
"This,"  he  adds,  "might  possibly  be  as- 
sumed as  clear  in  principle,  but  there  is 
also  the  authority  of  the  present  chief 
justice  of  the  common  pleas  in  its  support 
in  Illidge  v.  Goodwin,  5  Car.  &  P.  190. "  It 
is  unnecessary  to  follow  the  judgment  in 
the  consideration  of  the  second  part  of 
the  case,  namely,  whether  the  plaintiff, 
having  contributed  to  the  accident  by  get- 
ting into  the  cart,  was  prevented  from 
recovering  in  the  action,  as  no  such  ques- 
tion arises  here. 

In  Daniels  v.  Potter,  4  Car.  &  P.  262, 
the  defendants  had  a  cellar  opening  to 
the  street.  The  flap  of  the  cellar  had 
been  set  back  while  the  defendant's  men 
were  lowering  casks  into  it,  as  the 
plaintiffs  contended,  without  proper  care 
having  been  taken  to  secure  it.  The 
flap  fell,  and  injured  the  plaintiff.  The 
defendant  maintained  that  the  flap  had 
been  properly  fastened,  but  also  set  up 
as  a  defense  that  its  fall  had  been  caused 
by  some  children  playing  with  it.  But 
the  only  question  left  to  the  jury  by  Tin- 
DAL,  C.  J.,  was  whether  the  defendant's 
men  had  used  reasonable  care  to  secure  the 
flap.     His   direction   implies  that  in   that 


case  only  would  the  intervention  of  a 
third  partj-  causing  the  injury  be  a  de- 
fense. The  cases  of  Hughes  v.  MacHe,  2 
Hurl.  &  C.  744,  33  Law  J.  Exch.  177,  and  Ab- 
bott V.  Macfie,  Id.;  two  actions  arising 
out  of  the  same  circumstances,  and  tried 
in  the  passage  court  at  Liverpool,  though 
at  variance  with  some  of  tlie  foregoing,  so 
far  as  relates  to  thf  effect  on  the  plain- 
tiff's right  to  recover  where  his  own  act 
as  a  trespasser  has  contributed  to  the  in- 
jury of  which  he  comi»lains,  is  in  accord- 
ance with  them  as  respects  the  defendants' 
liability  for  his  own  act,  where  that  act  is 
the  primary  cause,  though  the  act  of  an- 
other may  have  led  to  tiie  immediate  re- 
sult. The  defendants  had  a  cellar  open- 
ing to  the  street.  Their  men  had  taken 
up  the  flap  of  the  cellar  for  the  purpose  of 
lowering  casks  into  it,  and  having  reared 
it  against  the  wall  nearly  iipright  with 
its  lower  face,  on  which  there  were  cross- 
bars, towards  the  street,  had  gone  away. 
The  plaintiff  in  one  of  the  actions,  a  child 
Ave  years  old,  got  upon  the  cross-bars  of 
the  flap,  and  in  jumping  off  them  brought 
down  the  flap  on  himself  and  another 
child,  the  plaintiff  in  the  other  action,  and 
both  were  injured.  It  was  held  that, 
while  the  plaintiff  whose  act  liad  caused 
the  flap  to  fall  could  not  recover,  the  oth- 
er plaintiff  who  had  bee]i  injured  could, 
provided  he  had  not  been  playing  with 
the  other  so  as  to  be  a  joint  actor  with 
him. 

Bird  V.  Holbrook,4  Bing.  623,  is  another 
striking  case,  as  there  the  plaintiff  was 
undoubtedly  a  trespasser.  The  defendant 
being  the  owner  of  a  garden,  which  was 
at  some  distance  from  his  dwelling-house, 
and  which  was  subject  to  depredations, 
had  set  in  it  without  notice  a  spring-gun 
for  the  protection  of  his  property.  The 
plaintiff,  who  wasnotawai-ethata  spring- 
gun  was  set  in  the  garden,  in  order  to 
catch  a  peafowl,  the  property  of  a  neigh- 
bor, which  had  escaped  into  the  garden, 
got  over  the  wall,  and  his  foot  coming,  in 
his  pursuit  of  the  bird,  into  contact  with 
the  wire  which  communicated  with  the 
gun,  the  latter  went  off  and  injured  him. 
It  was  held,  though  his  own  act  had  been 
the  immediate  cause  of  the  gun  going  off, 
yet  that  the  unlawful  act  of  the  defendant 
in  setting  it  rendered  the  latter  liable  for 
the  consequences. 

In  the  course  of  the  discussion  the  sim- 
ilar case  of  Jay  v.  Whitfield,  at  page 
644,  4  Bing.,  [cited  in  3  Barn.  &  Aid.  30S,] 
was  mentioned, — tried  before  Richards, 
C.  B., — in  which  a  plaintiff  who  had  tres- 
I»assed  upon  premises  in  order  to  cut  a 
stick,  and  had  been  similarly  injured,  had 
recovered  substantial  damages,  and  no 
attempt  had  been  made  to  disturb  the 
verdict. 

In  Hill  v.  New  River  Co.,  9  Best  &  S.  303, 
the  defendants  created  a  nuisance  in  a 
public  highway  by  allowing  a  stream  of 
water  to  spout  up  open  and  unfenced  in 
the  road.  The  plaintiff's  horses,  passing 
along  the  road  with  his  carriage,  tot)k 
fright  at  the  water  thus  spouting  up,  and 
swerved  to  the  other  side  of  the  road.  It 
so  happened  that  there  was  in  the  road  an 
open  ditch  or  cutting,  which  had  been 
made  by  contractors  who  were  construct- 


GENERAL  PRINCIPLES. 


35 


Ing  a  yevfer,  and  which  had  been  left  un- 
fenced  and  unguarded,  whicli  it  ought  not 
to  have  been.  Into  this  ditch  or  cuttiiie;, 
owing  to  its  being  unfenced,  the  horseK 
fell,  and  injured  themselves  and  the  car- 
riage. It  was  contended  that  the  reme- 
d3',  if  anj',  was  against  the  contractors; 
hut  it  was  lield  that  the  plaintiff  was  en- 
titled to  recover  against  tlie  company. 

In  Burrows  v.  (!oke  Co.,  L.  K.  7  Exch. 
96,  it  was  held  in  the  exchequer  chamber, 
atiirniing  a  judgment  of  the  court  of  ex- 
checiuer,  that  where,  tlirougii  a  breach  of 
contract  by  the  defendants  in  not  serving 
the  i)laintiff  with  a  proper  pipe  to  convey 
gas  from  their  main  into  his  premises,  an 
escape  of  gas  had  taken  place,  whereupon, 
the  servant  of  a  gas-fitter  at  Avork  on  the 
premises  having  gone  into  the  part  of 
the  premises  where  the  escape  had  oc- 
curred, with  a  lighted  candle,  and  examin- 
ing the  pipe  with  the  candle  in  his  hand, 
an  exi)losi()n  took  place,  by  which  the 
Ijremises  were  injured, the  defendants  were 
liable,  though  the  explosion  had  been  im- 
mediately caused  by  the  imprudence  of  the 
gas-fitter's  man  in  examining  the  pipe 
with  a  lighted  candle  in  his  hand. 

In  Collins  v.  Commissioners,  L.  R.4  C.  P. 
270,  tlie  defendants  were  bound,  under  an 
act  of  parliament,  to  construct  a  cut  with 
proper  walls,  gates,  and  sluices,  to  keep 
out  the  waters  of  a  tidal  river,  and  also  a 
culvert  under  the  cut,  to  carry  off  the 
drainage  of  the  lands  lying  east  of  the 
cut,  and  to  keep  the  same  open  at  all 
times.  In  consequence  of  the  defective 
construction  of  the  gates  and  sluices,  the 
waters  of  the  river  flowed  into  the  cut, 
and,  bursting  its  western  bank,  flooded 
the  adjoining  lands.  The  plaiutiff  and 
other  proprietors  on  the  eastern  side 
closed  the  culvert,  and  so  protected  their 
lands;  but  the  proprietors  on  the  western 
side,  to  lessen  the  evil  to  themselves,  re- 
opened the  culvert,  and  so  increased  tha 
overflow  on  the  plaintiffs'  land,  and 
caused  injury  to  it.  The  defendants 
sought  to  ascribe  the  injury  to  the  act  of 
the  western  proprietors  in  removing  the 
obstruction  which  those  on  the  other  side 
had  placed  at  the  culvert.  But  it  was 
held  that  the  negligence  of  the  defendants 
was  the  substantial  cause  of  the  mischief. 
"The  defendants,  "  says  Mr.  Justice  Mon- 
tague Smith,  "cannot  excuse  themselves 
from  the  natural  consequences  of  their  neg- 
ligence by  reason  of  the  act,  whether 
rightful  or  wrongful,  of  those  who  re- 
moved the  obstruction  placed  in  the  cul- 
vert under  the  circumstances  found  in  this 
case."  "The  primary  and  substantial 
cause  of  the  injury,"  says  Mr.  Justice 
Bkktt,  "was  the  negligence  of  the  defend- 
ants, and  it  is  not  competent  to  them  to 
say  that  they  are  absolved  from  the  conse- 
•luences  of  their  wrongful  act  by  what  the 
plaintiff  or  some  one  el.se  did."  "lean- 
not  see  how  the  defendants  can  excuse 
themselves  by  urging  that  the  plaintiff 
was  prevented  by  other Avrong-do^TS  from 
preventing  a  part  of  the  injury." 

The  case  of  Harrison  ■«'  Railway  Co.,  3 
Hurl.  &  C.  231,  33  Law  J.  Exch.  26G,  be- 
longs to  the  same  class.  The  defendants 
were  bound,  under  an  act  of  parliament,  to 
maintain  a   delph  or  drain  with  bauKS  for 


carrying  off  water  for  theprotection  of  the 
adjoining  lands.  At  the  same  time  cer- 
tain commissioners,  appointed  under  an 
act  of  parliament,  were  bound  to  main- 
tain the  navigation  of  the  i-iver  \Vitham, 
with  which  the  delph  communicated. 
There  having  been  an  extraordinary  fall 
of  rain,  the  water  in  the  delph  rf)se  near- 
ly to  the  height  of  its  banks,  when  one  of 
them  gave  way,  and  caused  the  damage 
of  which  the  plaintiff  complained.  It 
was  found  tiiat  tlie  bank  of  the  delph  was 
not  in  a  proper  condition;  but  it  was  al- 
so found,  and  it  was  on  this  that  the  de- 
fendant.s  relied  as  a  defense,  tliat  the 
breaking  of  the  bank  had  been  caused  by 
the  water  in  it  having  been  penned  back, 
owing  to  the  neglect  of  the  commission- 
ers to  maintain  in  a  proper  state  certain 
works  which  it  was  their  duty  to  keep  up 
under  their  act.  Nevertheles.s  the  defend- 
ants were  held  liable. 

These  authorities  would  appear  to  be 
sufficient  to  n)aintain  the  plaintiff's  right 
of  action  under  the  circumstances  of  this 
case.  It  must,  however,  be  admitted  that 
in  one  or  two  recent  cases  the  courts  have 
shown  a  disposition  to  confine  the  liabili- 
ty arising  from  unlawful  acts,  negligence, 
or  omissions  of  duty  within  narrower  lim- 
its, 1)3'  holding  a  defendant  liable  for  those 
consequences  onlj'  which,  in  the  ordinary 
course  of  things,  were  likely  to  arise,  and 
which  might  therefore  reasonabl.y  be  ex- 
I)ected  to  arise,  or  which  it  was  contem- 
plated by  the  parties  might  arise,  from 
such  acts,  negligence,  or  omissi.sns.  In 
Greenland  v.  Chaplin,  5  Exch.  243,  at  page 
248,  Pollock,  C.  B.  ,  says  :  "  I  entertain  con- 
siderable doubt  whether  a  person  who  is 
guilty  of  negligence  is  responsible  for  all 
the  consequences  which  may  under  any 
circumstances  arise,  and  in  respect  of  mis- 
chief which  could  by  no  possibility  have 
been  foreseen,  and  which  no  reasonable 
person  would  have  anticipated."'  Acting 
on  this  principle,  the  court  of  common 
pleas,  in  the  recent  case  of  Sharp  v.  Powell, 
L.  R.  7  C.  P.  253,  held  that  the  action 
would  not  lie  where  the  injury,  though 
arising  from  the  unlawful  act  of  the  de- 
fendant, cotild  not  have  l)een  reascjnably 
expected  to  follow  from  it.  The  defendant 
had,  contrar^^  to  the  provisions  of  the 
police  act,  w^ashed  a  van  in  the  street,  and 
suffered  the  water  used  for  the  purpose  to 
flow  down  a  gutter  towards  a  sewer  at 
some  little  distance.  The  weather  b3i/ig 
frosty,  a  grating,  through  which  water 
flowing  down  the  gutter  passed  into  the 
sewer,  had  become  frozen  over,  in  conse- 
(luence  of  which  the  water  sent  down  by 
the  defendant,  instead  of  passing  into  the 
sewer,  spread  over  the  street  and  became 
frozen,  rendering  the  street  .slipper^'.  The 
jdaintiff's  horse,  coming  along,  fell  in  con- 
sequence, and  was  injured.  It  was  held 
that,  as  thei-e  was  nothing  to  show  that 
the  defendant  was  aware  of  the  obstruc- 
tion of  the  grating,  and  as  the  stoppage 
of  the  water  was  not  the  necessary-  or 
probable  consequence  of  the  defendant's 
act,  he  was  not  responsible  for  what  had 
happened.  Bovill,  C.  J.,  there  sa3-s  :  "No 
doubt  one  who  commits  a  wrongful  act 
is  responsible  for  the  ordinary  consequen- 
ces  which   are  likelj'  to  result   therefrom, 


80 


LAW  OF  TORTS. 


but,  generally  speaking,  he  is  not  liable  for 
damage  which  is  not  tlie  natural  or  ordi- 
nary' consequence  of  such  act,  unless  it  be 
shown  that  he  knows,  or  has  reasonable 
means  of  knowing,  that  consequences  not 
usually  resulting  from  the  act  are,  by  rea- 
son of  some  existing  cause,  likely  to  inter- 
vene so  as  to  occasion  damage  to  a  tnird 
person.  Where  there  is  no  reason  to  ex- 
pect it,  and  no  knowledge  in  the  person 
doing  the  wrongful  act  tiiat  such  a  state 
of  things  exists  as  to  render  the  damage 
probable,  if  injury  does  result  to  a  third 
j)ersou  it  is  generally  ctjnsidered  that  tiie 
wi'ougful  act  is  not  tlie  proximate  cause 
of  the  injury  so  as  to  render  the  wrong- 
doer liable  to  an  action."  And  Groye,  J., 
said:  "I  am  entirely  of  the  same  opinion. 
I  think  the  act  of  the  defendant  was  not 
the  ordinarj^  or  proximate  cause  of  the 
damage  to  the  plaintiff's  horse,  or  within 
the  ordinary  consequences  which  tlie  de- 
fendant may  be  presumed  tohave  contem- 
plated or  for  which  he  is  resi:>onsible.  The 
expression,  the  'natural'  consequence, 
which  has  been  used  in  so  many  cases,  and 
which  I  myself  have, no  doubt,  often  used, 
by  no  means  conve3's  to  the  mind  an  ade- 
quate notion  of  what  is  meant;  'proba- 
ble' would  perhaps  be  abetter  expression. 
If,  on  the  present  occasion,  the  water  had 
been  allowed  to  accumulate  round  the 
spot  where  the  washing  of  the  van  took 
place,  and  had  there  frozen  obviously 
within  the  sight  of  the  defendant,  and  the 
plaintiff's  hoi-se  had  fallen  there,  I  should 
have  been  inclined  to  think  that  the  de- 
fendant would  nave  been  responsible  for 
the  consequences  which  had  resulted." 
And  Mr.  Justice  Keating  said:  "The 
damage  did  not  immediately  flow  from 
the  wrongful  act  of  the  defendant,  nor 
was  such  a  probable  or  likely  result  as  to 
make  him  responsible  for  it.  The  natural 
consequence,  if  that  be  a  correct  expres- 
si(jn,  of  the  wrongful  act  of  tiie  defendant, 
w'ould  have  been  that  the  water  would, 
under  ordinary  circumstances,  have  flowed 
along  the  gutter  or  channel,  and  so  down 
the  grating  to  the  sewer.  The  stoppage 
and  accumulation  of  the  water  was  caused 
by  ice  or  other  obstruction  at  the  drain, 
not  shown  to  have  been  known  to  the  de- 
fendant, and  for  which  he  was  in  no  de- 
gree responsible.  That  being  so,  it  would 
obviouly  be  unreasonable  to  trace  the 
damage  indirectly  back  to  the  defendant.  " 
We  acquiesce  in  the  doctrine  thus  laid 
down  as  applicable  to  the  circumstances 
of  the  particular  case,  but  we  doubt  its 
applicability  to  the  present,  which  ap- 
pears to  us  to  come  within  the  principle  of 
Scott  V.  Shepherd, 3  Wils.  40.3,  2  W.  Bi.  892, 
and  Dixon  v.  Bell,  5  Maule  &  S.  19s,  and 
the  other  cases  to  which  we  have  referred. 
At  the  same  time,  it  appears  to  us  that 
the  case  before  us  will  stand  the  test  thus 
said  to  be  the  true  one.  For  a  man  who 
unlawfullj'  places  an  obstruction  across 
either  a  public  or  a  private  way  may  antic- 
ipate the  removal  of  the  obstruction,  by 
some  one  entitled  to  use  the  way.  as  a 
thing  likely  to  happen  ;  and,  if  this  should 
be  done,  the  probability  is  that  the  ob- 
struction BO  removed  will,  instead  of  being 


carried  away  altogether,  be  placed  some- 
where near.  Thus,  if  the  obstruction  ha 
to  the  carriage-way,  it  will  very  likely  be 
placed,  as  was  the  case  here,  on  the  foot- 
path. If  the  obstruction  be  a  dangerous 
one,  wheresoever  placed,  it  may,  as  was  the 
case  here,  become  a  source  of  damage,  from 
which,  should  injury  to  an  innocent  party 
occur,  the  original  author  of  the  mischief 
should  be  held  responsible.  Moreover,  we 
are  of  opinion  that,  if  a  person  places  a 
dangerous  obstruction  in  a  highway  or 
in  a  private  road,  over  which  persons 
have  a  right  of  way,  he  is  bound  to  take 
all  necessary  precaution  to  protect  per- 
sons" exercising  their  right  of  way,  and 
that  if  he  neglects  to  do  so  he  is  liable  for 
the  consequences.  It  is  unnecessary  to 
consider  how  the  matter  would  have 
stood  had  the  plaintiff  been  a  trespasser. 
The  case  of  Mangau  v.  Atterton,  4  Hurl. 
&  C.  3SS,  L.  R.  1  Exch.  239,  was  cited  be- 
fore us  as  a  strong  authority  in  favor  of 
the  defendant.  The  defendant  had  there 
exposed  in  a  public  market-place  a  machine 
for  crushing  oil-cake  without  it  being 
thrown  out  of  gear,  or  the  handle  being 
fastened,  or  any  person  having  the  care  of 
it.  The  plaintiff,  a  boy  of  four  years  of 
age,  returning  from  school  with  his  broth- 
er, a  boy  of  seven,  and  some  other  boys, 
stopped  at  the  machine.  One  of  the  boys 
began  to  turn  the  handle.  The  plaintiff, 
at  the  suggestion  of  his  brother,  placed  his 
hand  on  the  cogs  of  the  wheels,  and,  the 
machine  being  set  in  motion,  three  of  his 
fingers  were  crushed.  It  was  held  by  the 
court  of  exchequer  that  the  defendant  was 
not  liable— i^iAvt,  because  there  was  no 
negligence  on  thepart  of  thedefendant,  or, 
if  there  was  negligence,  it  was  too  re- 
mote; and,  secondly,  because  the  injury 
was  caused  by  the  act  of  the  boy  who 
turned  the  handle,  and  of  the  plaintiff  him- 
self, who  was  a  trespasser.  With  the  latter 
ground  of  the  decision  we  have  in  the  pres- 
ent case  nothing  to  do;  otherwise  we 
should  have  to  consider  whether  it  should 
prevail  against  the  cases  cited,  with  which 
it  is  obviously  in  conflict.  If  the  decision 
as  to  negligence  is  in  conflict  with  our 
judgment  in  this  case,  we  can  only  say  we 
do  not  acquiesce  in  it.  It  appears  to  us 
that  a  man  who  leaves  in  a  public  place, 
along  which  persons,  and  among  them 
children,  have  to  pass,  a  dangerous  ma- 
chine, which  may  be  fatal  to  any  one  who 
touches  it,  without  any  precaution  against 
mischief,  is  not  only  guilty  of  negligence, 
but  of  negligence  of  a  very  reijrehensible 
character,  and  not  the  less  so  because  the 
imprudent  and  unauthorized  act  of  anoth- 
er may  be  necessary  to  realize  the  mischief 
to  which  the  unlawful  act  or  negligence  of 
the  defendant  has  given  occasion.  But, 
be  this  as  it  may,  that  case  cannot  govern 
the  present;  for  the  decision  proceeded  ex- 
pressly on  the  ground  that  there  had  been 
no  default  in  the  defendant;  here  it  cannot 
be  disputed  that  the  act  of  the  defendant 
was  unlawful.  On  the  whole,  we  are  of 
opinion,  both  on  principle  and  authority, 
that  the  plaintiff  is  entitled  to  our  judg- 
ment. 
Judgment  for  the  plaintiff. 


GENERAL  PRINCIPLES. 


37 


(4  Denio,  464. ) 

Vandenburgh  v.  Truax. 

(Supreme  Court  of  New  York.    May  Term,  1847.) 

Negligence  —   Proximate   or   Remote    Conse- 

QCEXCE3. 

A  boy,  having  had  a  quarrel  with  defendant  in 
a  city  street,  ran  away  from  him.  Defendant 
took  up  a  pickaxe,  and  followed  the  boy,  pursu- 
ing him  into  ttie  store  of  plaintiff,  by  whom  the 
boy  was  employed.  In  trying  to  save  himself 
from  being  sruck  with  the  pickaxe,  the  boy 
knocked  out  tha  faucet  from  a  cask  of  wine,  and 
part  of  the  wine  ran  out  and  was  lost.  Held,  that 
defendant  was  liable  for  the  damages  to  plaintiff. 
One  who  does  an  illegal  or  mischievous  act, 
likelj'  to  prove  injurious  to  others,  is  answerable 
for  all  the  consequeaces  which  may  directly  and 
naturally'  result  tharefrom,  although  he  did  not 
intend  to  do  the  particular  injury  which  followed. 

Error  to  Schenectady  common  pleas. 

Action  by  Truax  against  Vandenburs;!!, 
brought  before  a  justice  of  the  peace,  for 
damages  alleged  to  have  been  ♦•aused  by 
defendant  willfully  driving  a  boj'  through 
plantiff's  store,  and  knocking  a  cork  or 
faucet  from  a  barrel  of  wine  belonging  to 
plaintiff,  causing  part  of  the  wine  tiierein 
to  be  lost.  The  evidence  was  that  defend- 
ant had  quarreled  with  a  negro  ijo\-, 
about  16  or  18  years  of  age,  employed  by 
plaintiff  as  an  hostler,  while  both  were  in 
the  street  near  plaintiff's  store  in  the  city 
of  Schenectady;  that,  the  boy  having  a 
stone  in  his  hand,  defendant  took  hold 
of  him.  and  told  him  to  throw  down 
the  stone;  that  the  l)oy  did  so,  and  broke 
loose  from  defendant  and  ran  away;  that 
defendant  then  took  up  a  pickaxe,  and  fol- 
lowed the  boy,  who  fled  into  plaintiff's 
store,  where  defendant  pursued  him,  hav- 
ing the  pickaxe  in  his  hand;  that,  the 
rear  door  of  the  store  being  shut,  the  boy, 
not  being  able  to  escape  through  it  with 
out  being  overtaken,  ran  behind  the  coun- 
ter, as  the  witness  testified  he  believed,  to 
save  himself  from  being  struck  with  the 
pickaxe;  and  that,  in  doingso,  heknocked 
out  the  cock  or  faucet  of  a  cask  of  plain 
tiff's  wine,  and  wine  of  the  value  of  .^-iwas 
spilt  and  lost.  The  justice  rendered  judg- 
ment for  plaintiff,  which  was  affirmed  by 
the  court  of  common  pleas.  Defendant 
brought  error  to  review  the  judgment  of 
the  common  pleas. 

P.  Potter,  for  plaintiff  in  error. 

No  action  will  lie  against  defendant. 
The  injuiT  was  not  the  joint  act  of  defend- 
ant and  the  legro.  The  latter  was  a  free 
agent,  at  liberty'  to  go  where  he  pleased. 
It  cannot  be  said  that  defendant  drove 
him  into  plaintiff's  store  against  the  cask 
of  wine.  The  case  is  not  within  Scott  v. 
Shepherd,  2  W.  Bl.  892. 

S.  A.  Dciffg'ett,  for  defendant  in  error. 

All  who  direct,  assist,  or  in  any  way 
contribute  to  a  tresi)ass  are  liable  as  prin- 
cipals, and  may  be  sued  jointly  or  several- 
ly. 1  Chit.  PI.  67;  Thorp  v.  Burling.  11 
Johns.  285;  Bishop  v.  Ely,  9  Johns.  294; 
Guille  v.  Swan,  19  Johns.  382. 

Bronso.v,  C.  J.  It  may  be  laid  down  as 
a  general  rule  that  when  one  does  an  ille- 
gal or  mischievous  act,  which  is  likely  to 
prove  injurious  to  others,  and  when  he 
does  a  legal  act  in  such  a  careless  and  im- 
pr<jper  manner  that  injury  to  third  per- 
sons may  probably  ensue,  he  is   auswera-| 


ble,  in  some  form  of  action,  for  all  the  con- 
sequences which  may  directly  and  natural- 
ly result  from  his  conduct,  and  in  many 
cases  he  is  answerabh;  criminally  as  well 
as  civilly.  It  is  not  necessary  that  lie 
should  intend  to  do  tlie  particular  injury 
which  follows,  nor,  indeed,  any  injury  at 
all.  If  a  man  without  just  cause  aim  a 
blow  at  his  enemy,  which,  missing  him, 
falls  upon  his  friend,  it  is  a  tres[)ass  upon 
the  friend,  and  may  be  murder  if  a  dead- 
ly weapon  was  usea,  and  death  ensued. 
Or  if,  in  attemi)ting  to  steal  or  destroy 
the  property  of  another,  he  unfortunately 
wound  the  owner,  or  a  third  person,  lie 
must  answer  for  the  consequences,  al- 
though he  did  not  intend  that  particular 
mischief.  And,  although  no  mischief  of 
any  kind  may  be  intended,  yet,  if  a  man 
do  an  act  which  is  dangerous  to  the  per- 
sons or  property  of  others,  and  which 
evinces  a  reckless  disregard  of  conse- 
quences, he  will  be  answerable  civill.y.  and 
in  many  cases  criminally,  for  the  injuries 
which  may  follow;  as  if  he  discharge  a 
gun,  or  let  loose  a  ferocious  or  mad  ani- 
mal, in  a  multitude  of  people;  or  tlirow  a 
stone  from  the  house-top  into  a  street 
where  many  are  passing;  or  keep  a  large 
quantity'  of  guni)owder  near  the  dwelling 
of  another.  In  these  and  such  like  cases 
he  must  answer  for  anj'  injury  which  maj' 
result  from  his  misconduct  to  the  persons 
or  propert3'  of  others.  And,  if  the  act  was 
so  imminently  dangerous  to  others  as 
to  evince  a  depraved  mind,  regardless  of 
human  life,  and  death  ensue,  it  will  be 
murder.  These  are  familiar  cases,  which 
need  not  be  proved  bj-  referring  to  books. 
In  the  case  of  the  lighted  squib  which 
was  thrown  into  the  market-house,  the 
debate  was  upon  the  form  of  the  remedy'. 
The  question  was  vrhether  the  plaintiff 
could  maintain  trespass  vi  et  avmis,  or 
whether  he  should  not  have  brought  an 
action  on  the  case.  His  right  to  recover 
in  some  form  seems  not  to  have  been  dis- 
puted. Scott  V.  Shepherd,  2  TV.  Bl.  Sy2, 
3  Wils.  403.  In  that  case  the  impulse  was 
given  to  inanimate  matter,  while  here 
a  living  and  rational  being  was  moved  by 
fear.  But  still  there  is  in  some  respects  a 
striking  analogy  between  the  two  cases. 
There  the  force  which  the  defendant  gave 
to  the  squib  was  spent  when  it  fell  upon 
the  standing  of  Yates;  and  it  was  after- 
wards twice  put  in  motion,  and  in  new  di- 
rections, first  by  Willis,  and  then  by  Ryall, 
before  it  struck  the  plaintiff,  and  put  out 
his  eye.  But  as  the  throwing  of  the  squib 
was  a  mischievous  act,  which  was  likely 
to  do  harm  to  some  one,  and  as  the  two 
men  who  gave  the  new  impulses  to  the 
missile  acted  from  terror  and  in  self-de- 
fense, the  defendant  was  held  answerable 
as  a  trespasser  for  the  injury  which  result- 
ed to  the  plaintiff.  Now,  here,  although 
the  negro  bo3'  maj'  have  been  wrong  at 
the  first,  yet  when  he  had  thrown  down 
the  stone,  and  was  endeavoring  to  get 
away  from  the  difficulty  into  which  he 
had  brought  himself,  the  defendant  was 
clearly  wrong  in  following  up  the  quarrel. 
When  the  noy  ran  upon  the  cask  of  wine, 
he  was  moved  with  terror  [)roduced  by 
the  illegal  act  of  the  defendant;  he  was 
fleeing  for   his  life,  from  a  man  in  hot  i,ur- 


38 


LAW  OF  TOUTS. 


suit,  armed  with  a  deadly  weapon.  Tlie 
injury  which  the  plaintiff  sustained  was 
not  the  necessary  consequence  of  the 
wrong  done  liy  the  defendant,  nor  was  it 
so  in  the  case  of  the  lighted  squib.  But  in 
both  instances  the  wrong  was  of  such  a 
nature  that  it  might  very  naturally  result 
in  an  injuiT  to  some  tliird  person.  It  is 
true  that  the  boy  might  have  gone  else- 
where, instead  of  entering  the  plaintiff's 
store;  and  it  is  equally  true  that  Willis 
and  Ryall  might  have  thrown  the  squib 
out  of  the  market-house,  which  was  open 
on  both  sides  and  at  one  end,  instead  of 
tossing  it  across  the  market-house  among 
the  people  there  assembled.  But  in  the 
one  case,  as  well  as  in  the  other,  the  inno- 
cent agents  were  moved  by  fear,  and  had 
no  time  to  reflect  upon  the  most  prudent 
course  of  conduct.  It  was  quite  natural, 
however,  that  the  boj"  should  tlee  to  his 
employer  for  protection.  And,  finally,  the 
proximate  cause  of  the  injury  was,  in 
both  cases,  an  intelligent  agent. 

In  auille  V.  Swan,  19  Johns.  381,  the  im- 
mediate actors  in  the  wrong  which  Avas 
done  to  the  plaintiff  were  moved  by  their 
sympathy  for  the  defendant,  who  had 
brought  himself  into  a  perilous  condition 
by  ascending  in  a  balloon.  The  balloon 
descended  into  the  plaintiff's  garden,  which 
was  near  where  it  had  gone  up,  and  a 
crowd  of  people,  seeing  the  defendant 
hanging  out  of  the  car  in  great  peril, 
rushed  into  the  garden  to  relieve  him, 
and,  in  doing  so,  trod  down  the  plaintiff's 
vegetables  and  flowers.  For  the  wrong 
done  by  the  crowd,  as  well  as  for  the  inju- 
ry done  by  himself,  the  defendant  was  held 
answerable  as  a  trespasser.  Although  the 
ascent  was  not  an  illegal,  it  was  a  foolish, 
act,  and  the  defendant  ought  to  have 
foreseen  that  injurious  consequences  might 
follow.  The  case  seems  not  to  have  been 
put  upon  the  ground  of  a  concert  of  action 
between  the  defendant  and  the  multitude, 
but  on  the  ground  that  the  defendant's 
descent,  under  sucli  circumstances,  Tvould 
ordinarily  and  naturallj^  draw  a  crowd  of 
people  about  him,  either  from  curiosity, 
or  for  the  purpose  of  rescuing  him  from  a 
perilous  situation.  It  was  added,  how- 
ever, that  if  the  defendant  had  beckoned 
to  the  crowd  to  come  to  his  assistance, 
they  would  all  have  been  co-trespassers; 
and  the  situation  in  which  the  defendant 
had  voluntarily  and  designedlj'  placed 
himself  was  equivalent  to  a  direct  request 
to  the  crowd  to  follow  him. 

If  the  cases  of  the  squib  and  the  balloon 
have  not  gone  beyond  the  limits  of  the 
law,  the  ilefendant  is  answerable  for  the 
injury  which  he  has  brought  upon  the 
plaintiff.  And  there  is  nearly  as  much 
reason  for  holding  him  liable  for  driving 
the  boy  against  the  wine  cask,  and  thus 
destroying  the  plaintiff's  property,  as 
there  would  be  if  he  had  produced  the 
same  result  by  throwing  the  boy  upon  the 
cask,  in  which  case  his  liability  could  not 
have  been  questioned.  It  is  not  necessary 
to  inquire  whether  the  action  should  be 
trespass  or  case;  for  this  declaration  may 
as  well  be  considered  one  thing  as  the 
other.  It  seems  that  the  plaintiff,  when 
before  the  justice,  called  the  action  tres- 
pass;   but    the  declaration   does   not   al- 


lege that  the  act  was  done  either  vi  et 
armis  or  coutra.  pncem.  Courts  of  record 
might  well  enough  have  been  less  nice 
than  they  have  been  about  the  distinction 
between  trespass  and  case.  Seneca  Road 
Co.  V.  Auburn  &  R.  R.  Co.,  5  Hili.  170. 
And  clearly,  as  the  pleadings  in  justices' 
courts  are  construed  in  the  most  liberal 
manner  for  the  advancement  of  justice,^ 
this  may  very  well  be  regarded  as  an  ac- 
tic)n  on  the  case. 
Judgment  affirmed. 


(99  N.  Y.  1.58,  1  N.  E.  Rep.  608.) 
LowEKY  V.  Manhattan  Ry.  Co. 

(Court  of  Appeals  of  New  York.     May  5, 1885.  )• 

Negligence  —  Proximate  or  Remote  Conse- 
quences. 
Fire  from  defendant's  locomotive  on  its  elevated 
railway  fell  upon  a  horse  attached  to  a  wagon  in 
the  street  below,  and  upon  the  hand  of  the  driver, 
causing  the  horse  to  run  away.  The  driver,  after 
failing  in  an  attempt  to  stop  the  horse  by  driv- 
ing him  against  a  post  of  the  elevated  railroad, 
intentionally  turned  him  against  the  curb-stone 
to  arrest  his  progress ;  but  the  wagon  passed  over 
the  curb-stone,  threw  out  the  driver,  and  ran  over 
and  injured  plaintiff.  Held,  that  defendant  was 
not  relieved  from  liability  for  the  injury  to  plain- 
tiff, even  though  plaintiff  would  not  have  been 
injui'ed  but  for  the  driver's  diversion  of  the  horse 
from  the  natural  course  it  might  have  taken,  and 
though  there  might  have  been  an  error  of  judg- 
ment on  the  driver's  part;  as  it  might  be  assumed 
that  by  the  injury  to  his  hand,  and  the  sudden- 
ness of  the  accident,  the  driver  was  so  discon- 
certed as  to  be  unable  to  manage  and  control  the 
horse  as  he  would  otherwise  have  done.  Ra- 
PALLO,  J.,  dissenting. 

Appeal  from  court  of  common  pleas,  city 
and  county  of  New  York,  general  term. 

Action  by  Joseph  Lowery  against  the 
Manhattan  Railway  Company,  for  per- 
sonal injuries  to  plaintiff,  an  infant,  al- 
leged to  have  been  caused  by  negligence 
on  the  part  of  defendant. 

Hug'Ii  Li.  Cole,  for  appellant.  Osborne 
E.  Bright,  for  respondent. 

Miller,  J.  The  principal  question  aris- 
ing upon  this  appeal  relates  to  the  right 
of  the  plaintiff  to  recover  fur  the  injuries 
sustained.  The  claim  of  the  defendant 
is  that  the  cause  of  the  injury  was  too  re- 
mote to  authorize  a  recovery  of  any  dam- 
ages whatever,  and  it  is  urged  that  the 
court  erred  in  denying  the  motion  to  dis- 
miss the  complaint  made  by  the  defend- 
ant's counsel  on  the  ground  stated,  as 
well  as  in  the  charge  to  the  jury  that,  if 
they  believed  "  that  the  coal  and  ashes  fell 
from  the  defendant's  locomotive  through 
any  negligence  on  the  part  c)f  the  defend- 
ant, its  servants  or  agents,  and,  falling 
upon  the  horse,  caused  him  to  become  un- 
manageable and  run  against  the  plaintiff, 
inflicting  injuries  upon  him,  then  the  de- 
fendant is  liable  to  the  plaintiff  for  his 
damages  occasioned  thereby."  The  same 
question  was  also  raised  by  the  defend-, 
ant's  counsel  by  a  recjuest  to  the  judge  to 
charge  that  "if  the  jury  believed  the  acci- 
dent occurred  through  the  driver's  error 
of  judgment  in  endeavoring  to  obtain  con- 


GENERAL  PRINCIPLES. 


39 


trol  of  his  horse  the  plaintiff  cannot  re- 
cover."  wiiic'h  was  refused,  and  an  excep- 
tion duly  talven  to  the  decision.  It  is 
urged  by  the  appellant's  counsel  that, 
where  tiiere  is  an  intermediary  agent  or 
medium  between  the  primary  cause  of  the 
injury  and  the  ultimate  result,  the  rule  of 
law  to  be  applied  is  that  where  the  orig- 
inal act  complained  of  was  not  voluntary 
or  intentional,  or  one  of  affirmative  iile- 
galitj'.  or  in  itself  the  cause  of  criminal 
L'omplaint,  but  was  caused  by  negligence, 
the  responsibility  is  limited  to  the  uec- 
essarj'  and  natural  consequences  of  the 
act,  and  that  when,  beyond  that, they  are 
or  may  be  modified  or  shaped  by  other 
causes,  they  are  too  remote  to  be  the 
foundation  of  legal  accountability.  The 
injury  sustained  by  the  plaintiff  was 
caused  bj'  reason  of  fire  falling  from  a  lo- 
comotive of  the  defendant  upon  a  horse 
attached  to  a  wagon  in  the  street  below, 
and  upon  the  hand  of  the  driver.  The 
horse  became  frightened,  and  ran  away, 
and  the  driver  attempted  to  guide  his 
movements,  and  drive  him  against  a  ijost 
of  the  elevated  railroad  so  as  to  stop  him. 
Failing  to  accumpli.sh  this,  he  inten- 
tionally turned  the  horse,  and  attempted 
to  run  him  against  the  curbstone  to  make 
it  heav3'  for  him,  and  so  arrest  his  prog- 
ress; but  the  wagon  passed  over  the 
curb-stone  instead  of  being  arrested  bj'  it, 
and  threw  the  driver  out,  and  ran  over 
and  injured  the  plaintiff.  It  will  be  seen 
that  the  injury  was  not  caused  directly 
by  the  defendant,  but  was  produced 
through  the  instrumentality  of  the  horse 
and  driver,  the  latter  of  whom,  it  appears, 
was  doing  all  that  lay  in  his  power,  and 
exercising  his  best  judgment,  in  attempt- 
ing to  stop  the  frightened  animal,  and  to 
prevent  any  further  injury;  and  tlie  ques- 
tion we  are  called  upon  to  consider  here 
is  whether,  in  view  of  the  fact  that  the 
plaintiff  may  have  been  injured  by  reason 
of  the  management  of  the  horse  by  the 
driver,  in  consequence  of  which  it  was  di- 
verted from  the  natural  couise  it  might 
otherwise  have  taken,  the  defendant  is  re- 
lieved from  responsibility  for  the  result 
of  the  accident. 

It  may  be  assumed  that  at  that  time 
the  driver,  who  was  smarting  from  the 
effects  of  the  burning  coal  which  had 
fallen  upon  his  hands,  and  startled  by  the 
suddenness  of  the  accident,  may  have 
been  somewhat  disconcerted  by  the  peril 
in  which  he  was  placed,  and  therefore 
was  unable  to  manage  and  control  the 
infuriated  animal  as  he  might  otherwise 
have  done.  The  law,  however,  makes  al- 
lowances for  mistakes  and  for  errors  of 
judgment  Avhich  are  likely  to  happen  upon 
such  an  emergency.  It  does  not  demand 
the  same  coolness  and  self-possession 
which  are  required  when  there  is  no  occa- 
si<ni  for  alarm  or  a  loss  of  self-control. 
Where  a  person  is  traveling  upon  a  train 
of  cars,  and  a  collision  has  taken  place, 
or  is  likely  to  occur,  and  he,  under  the  ex- 
citement of  the  moment,  jumps  from  the 
train,  and  thereby  increases  his  own  dan- 
ger and  chances  of  injury,  although  the 
act  of  attempting  to  escape  is  very  haz- 
ardous and  negligent,  yet  it  is   an  instinc- 


tive act  which  naturally  would  take  place 
when  a  person  seeks  to  avoid  great  peril, 
and,  though  wrong  in  itself,  that  fact 
does  not  relieve thecompany  from  liability 
if  its  negligent  conduct  and  a  sense  of  im- 
pending danger  induced  the  act. 

In  the  case  under  consideration  the 
driver  wa?  passing  along  in  pursuit  of  his 
customary  business,  driving  his  horse, 
when  suddenly  the  falling  of  the  fire  upijn 
himself  and  the  horse  placed  him  in  a  po- 
sition of  great  danger,  and  he  was  justi- 
fied in  attempting  to  save  his  own  life  and 
protect  himself  from  injury.  If  he  made  a 
mistake  in  his  judgment,  the  company 
was  not  relieved  from  liability.  If  he  had 
allowed  the  horse  to  continue  on  its  own 
way,  it  is  by  no  means  clear  that  a  sim- 
ilar, if  not  greater,  injury  might  not  have 
been  inflicted  upon  some  other  person 
than  the  plaintiff.  It  is  impossible  to  de- 
termine what  the  result  might  have  been 
in  such  a  case,  and  theref{»re  it  is  indulg- 
ing in  speculation  to  say  that  the  driver's 
act,  under  the  circumstances,  was  not  the 
best  thing  that  could  have  been  done.  In 
such  cases  it  is  difficult  to  disconnect  the 
final  injury  from  the  primai'y  cause,  and 
say  that  the  damages  accruing  are  not 
the  natural  and  necessary  result  of  the 
original  wrongful  act.  The  defendant 
was  chargeable  with  an  unlawful  act, 
which  inflicted  an  injur\'  upon  the  driver 
and  the  horse  in  the  first  instance,  and 
ultimately  caused  the  injury"  sustained  by 
the  plaintiff.  The  injiiiy  <jrigiual]y  in- 
flicted was  in  the  nature  of  a  trespass,  and 
the  result  which  followed  was  the  natural 
consequence  of  the  act.  So  long  as  the  in- 
jury waschargeable  to  the  original  wrong- 
ful act  of  the  defendant,  it  is  not  apparent, 
in  view  of  the  facts,  how  it  can  avoid  re- 
sponsibility. There  was  no  such  interven- 
ing human  agency  as  would  authorize  the 
conclusion  that  it  was  the  cause  of  the  ac- 
cident, and  therefo)-e  it  cannot  be  said 
that  the  damages  were  too  remote. 

The  company  would  clearly  be  lial)le  for 
an3'  direct  injury  arising  from  the  falling 
of  the  burning  coals  upon  the  horse  if  it 
had  been  left  to  pursue  its  own  course  un- 
controlled by  the  driver,  and  there  would 
seem  to  be  no  reason  why  it  would  not  be 
equallj'  liable  when  the  driver  seeks  to 
control  the  horse,  and  exercises  his  best 
judgment  in  endeavoring  to  prevent  in- 
jury. That  he  failed  to  do  so  for  want  of 
strength,  or  by  reason  of  an  error  of  judg- 
ment, does  not  prevent  the  ai)plication  of 
the  principle  which  controls  in  such  a 
case.  It  may,  we  think,  be  assumed  that 
such  an  accident  might  occur  in  a  crowded 
street  Avhere  conveyances  are  constantly 
passing,  and  that  the  driver  of  the  horse, 
who  might  possibly  be  injured  by  the  de- 
fendant's unlawful  act,  would  seek  to 
guide  the  animal,  and,  if  possible,  prevent 
unnecessary  injur.y.  The  action  of  the 
driver,  in  view  of  the  exigency-  of  the  occa- 
sion, whether  prudent  or  otherwise,  may 
well  be  considered  as  a  continuation  of 
the  original  act  which  was  caused  by  the 
negligence  of  the  defendant,  and  the  de- 
fenant  was  liable  as  moch  as  it  would 
have  been  if  the  horse  had  been  permitted 
to   proceed   without  any    control    what- 


40 


LAW  OF  TORTS. 


ever.  We  think  that  the  damages  sus- 
tained by  the  plaintiff  were  not  too  re- 
mote, and  that  the  wrongful  act  of  the 
defendant  in  allowing  the  coals  to  escape 
from  the  locomotive,  thus  causing  the 
horse  to  become  frightened  and  run,  was 
the  proximate  cause  of  the  Injury,  and 
that  the  running  away  of  the  horse,  and 
the  collision  with  the  plaintiff,  were  the 
natural  and  probable  consequences  of  the 
negligence  of  the  defendant.  These  views 
are  fully  sustained  bv  the  decisions  of  the 
courts.  Scott  V.  Shepherd,  2  W.  Bl.  892; 
Lynch  v.  :>urdin.  1  Adol.  &  E.  (N.  S.)  29; 
Former  v.  Geldmecher,  13  Reporter,  790; 
Vaughan  v.  Menlove,  32  E.  C.  L.  219,  740; 
Guille  V.  Swan,  19  Johns.  3S1 ;  Thomas  v. 
Winchester,  6  N.  Y.  397;  Vandenburgh  v. 
Truax,  4  Deuio,  4fi4 ;  Webb  v.  Railroad 
Co.,  49  N.  Y.  420;  Pollett  v.  Long,  56  N.  Y. 
200;  Putnam  v.  Railroad  (.'o.,  55  N.  Y.  lOS. 

We  do  not  deem  it  necessary  to  examine 
these  cases  in  detail,  and,  while  it  may  be 
said  that  in  some  of  them  the  injury  was 
caused  by  the  positive  unlawful  act  of  the 
defendant  at  the  beginning,  in  others  the 
original  act  was  lawful,  while  tlie  conse- 
quence which  followed  resulted  from  the 
subsequent  interference  with  the  plaintiff's 
rights.  In  Guille  v.  Swan,  19  Johns.  381, 
supra,  the  act  of  setting  up  the  balloon 
was  lawful  in  itself,  and  the  injury  which 
followed  was  the  result  of  its  falling  on 
the  premises  of  the  plaintiff  in  the  city, 
and  attracting  the  attention  of  people 
outside,  and  thus  causing  the  damages  in- 
curred. In  the  case  at  bar,  the  falling  of 
the  coals  on  the  horse  and  driver  was 
caused  by  the  negligence  of  the  defend- 
ant's servants,  but  it  was,  nevertheless,  a 
direct  invasion  of  the  rights  of  the  proper- 
ty and  person  of  the  driver,  and  the 
owner  of  the  horse  and  wagon,  and  pro- 
duced the  injury  to  the  plaintiff  the  same 
as  the  falling  of  the  balloon  on  the  plain- 
tiff's premises  in  the  case  last  cited.  We 
are  unable  to  perceive  any  distinction  be- 
tween the  two  cases  w^hich  would  justify 
the  conclusion  that  the  damages  to  the 
plaintiff  here  were  more  remote  than  those 
which  were  incurred  in  the  case  last  cited. 
The  princiole  which  is  applicable  to  both 
cases  is  the  same,  and  it  is  not  apparent 
that  any  distinction  can  be  drawn  be- 
tween them  which  would  relieve  the  de- 
fendant from  responsibility.  It  is  enough 
to  charge  the  defendant  that  it  was  the 
author  and  originator  of  the  wrongful 
act  which  produced  the  injury,  and  hence 
it  is  liable  for  the  same  as  one  of  the  nat- 
ural consequences  arising  from  the  act  it- 
self. It  is  difficult  to  conceive  any  valid 
ground  upon  which  it  can  be  claimed  that 
the  effect  of  the  defendant's  negligence  was 
not  a  probable  and  the  natural  conse- 
quence following  tne  same. 

We  are  referred  to  numerous  cases  cited 
by  the  appellant's  counsel,  which,  it  is 
claimed,  sustain  the  doctrine  contended 
for  bj' him;  and  great  reliance  is  placed 
upon  the  case  of  Ryan  v.  Railroad  Co.,  35 
N.  Y.  210,  which  was  followed  and  sus- 
tained in  Pennsylvania  R.  Co.  v.  Kerr,  62 
Pa.  St.  353.  In  the  Ryan  (^ase  the  court 
defined  "remote  damages"  to  be  those 
which   are  not  an   ordinary  and  natural, 


not  an  expected,  not  a  necessary  and  us- 
ual, result  (if  the  negligent  act.  It  ap- 
peared in  that  case  that  the  fire  was  com- 
municated first  to  the  defendant's  build- 
ing fro.T:  a  locomotive  on  its  road,  and 
then,  over  a  space  of  130  feet,  to  the  build- 
ing of  the  plaintiff;  and  it  was  held  that 
the  defendant  was  not  liable,  for  the  rea- 
son that  it  was  not  to  be  anticipated  that 
the  fire  would  be  communicated  to  prem- 
ises not  contiguous.  This  is  far  different 
from  a  case  where  a  direct  injury  is  inflicted 
upon  a  person  and  property;  as.  in  the 
case  at  bar,  it  was  inflicted  in  a  populous 
city  upon  a  horse  and  di'iver,  and  caused 
the  horse  to  become  frightened  and  run 
awaj',  and  it  can  scarcely'  l)e  claimed  that 
the  consequence  whicli  ensued  was  not  the 
probable  and  direct  cause  of  the  injury 
sustained.  The  two  cases  last  cited  were 
considered  and  reviewed  by  Folgkr,  J., 
iu  Webb  v.  Railroad  Co.,  49'  N.  Y.  420,  su- 
pra. In  that  case  the  fire  was  communi- 
cated by  live  coals  dropping  irom  the  en- 
gine and  setting  fire  to  a  tie  on  the  track, 
which,  sjjreading  to  an  old  tie  by  the  side 
of  the  track,  and  from  that  to  some  rub- 
bish, and  then  to  thefence  alongthe  track, 
and  then  to  plaintiff's  woodland,  did  the 
damage  complained  of,  and  it  was  held 
that  the  defendant  was  liable  for  the  in- 
jury. It  is  laid  down  in  the  opinion  that 
the  Ryan  Case  held  that  the  action  in  that 
case  could  not  be  sustained  for  the  reason 
that  the  damages  incurred  by  the  plaintiff 
were  not  the  immediate,  hut  the  remote, 
result  of  the  negligence  of  the  defendant ; 
and  it  was  stated  that  this  was  not  a  new 
rule.  FoLGER,  J.,  says  in  regard  to  that 
case:  "The  pith  of  the  decision  is  that  this 
was  a  result  which  was  not  necessarily 
to  be  anticipated  from  thefactof  the  firing 
of  the  woodshed  and  its  contents;  that 
it  was  not  an  ordinary,  natural,  and  usual 
result  from  such  a  cause,  but  one  depend- 
ent upon  the  degree  of  heat,  the  state  of 
the  atmosphere,  the  condition  and  mate- 
x'ials  of  the  adjoining  structures,  and  the 
direction  of  the  wind,  which  are  said  to 
be  circumstances  accidental  and  varying. 
The  principle  applied  was  the  converse  of 
that  enfoiced  in  Vandenburgh  v.  Truax,  4 
Denio,  464,  which  was  that  the  conse- 
quence complained  of  was  the  natural  and 
direct  result  of  tiie  act  of  the  defendant. 
This  principle  is  said  in  the  Ryan  Case  not 
to  be  inconsistent  with  that  which  con- 
trolled the  disposition  of  the  latter  case, 
and  to  be  unquestionably  sound,  but 
should  be  applied  according  to  sound 
judgment  in  each  case  as  it  arises."  After 
referring  to  the  I'ennsylvania  decision, 
the  learned  judge  concludes  that  the  Ryan 
Case  was  not  controlling  in  the  disi^osi- 
tion  of  the  case  considered,  more  than  the 
long  line  of  decisions  which  preceded  it. 
It  will  be  observed  that  the  Ryan  Case  is 
clearly  distinguishable  from  the  case  at 
bar,  and  can  scarcely  be  held  to  be  ap- 
plicable to  the  facts  presented  here,  and 
was  not  followed  in  the  case  last  cited,  al- 
though there  was  considerable  similarity 
in  the  leading  facts  l)etween  the  two  cases. 
It  certainly  should  not  be  held  to  be  con- 
trolling where  there  was  a  positive  and 
unlawful   act  of   the   defendant  which,  as 


GENERAL  PRINCIPLES. 


41 


■we  have  seen,  induced  the  accident  which 
was  the  cause  of  the  plaintiff's  injury. 
Nor  have  the  courts  of  this  state,  since  the 
decision  of  Rj'an  v.  Railroad  Co..  supra, 
held  that  it  established  any  new  or  differ- 
ent rule  than  the  one  which  has  long  ex- 
isted, and  which  has  been  setted  by  repeat- 
ed adjudications,  as  will  be  seen  by  the 
citations  already  made.  In  Pollett  v. 
Jjong.  oG  N.  Y.  200,  it  was  held  that  wliere 
an  injury  to  one  is  caused  by.  and  is  the 
natural  and  probable  result  of,  the  wrong- 
ful act  or  omission  of  another,  such  other 
is  liable  therefor,  although  other  causes 
put  in  motion  by  the  ad  or  omission,  and 
which,  in  the  absence  thereof,  would  not 
have  produced  the  result,  contribute  to 
the  injury.  It  appeared  in  this  case  that 
the  defendant's  dam  had  given  waj'  and 
carried  away  a  dam  of  the  plaintiff,  and, 
by  increasing  the  volume  of  water,  tore 
out  the  dam  of  a  third  party,  of  whom 
plaintiff  was  assignee,  and  tlie  court 
charged,  in  substance,  that  defendant's 
negligence  must  have  been  the  sole  cause 
of  the  injury,  or  there  could  be  no  recov- 
ery; that,  although  defendant's  dam  was 
defective  and  out  of  i-epair,  and  in  conse- 
<iuence  gave  way,  if  there  was  sufficient 
water  in  the  middle  pond  when  its  dam 
gave  waj"  to  materially  increase  the  vol- 
ume and  force  of  the  stream,  then  plaintiff 
could  not  recover  for  injuries  to  the  lower 
dam,  as  the  damages  would  be  too  re- 
mote. This  was  held  error.  Gkovkh,  J., 
in  his  opinion,  after  stating  that  Ryan  v. 
Railroad  Co.,  and  Penn.^ylvania  R.  Co.  v. 
Kerr,  supra,  were  cited  in  support  of  the 
charge  and  after  discussing  the  Ryan 
Case,  says:  "Assuming  tliat  this  rule  was 
correctly  applied  in  the  case  of  Ryan  v. 
New  York  Central,  •  *  *  it  comes  far 
short  of  sustaining  the  proposition  under 
consideration."  It  will  he  seen  that  the 
Rj-an  Case  is  clearly  distinguishable  from 
the  case  at  bar.  ^Ye  have  carefully  exam- 
ined the  otlier  cases  in  this  state  which 
are  cited  and  relied  on  by  the  apjjellant's 
•counsel,  and  none  of  them  hold  that  no 
responsibility  exists  where  the  evidence 
establishes  an  act  of  the  defendant  which 
was  the  cause  of  injury  to  a  third  person, 
although  that  injurj'  may  have  been  occa- 
sioned by  the  intermediate  agency  and 
through  the  instrumentality  of  a  party 
who.  in  the  first  instance,  was  the  direct 
object  from  whicli  spiang  the  final  result, 
which  was  the  cause  of  the  damages 
claimed.  We  think  that  no  such  case  can 
be  found  in  the  reports.  The  decisions 
which  are  relied  upon  from  other  states  do 
not  present  a  state  of  facts  which  can  be 
regarded  as  en  tireh' analogous  to  the  case 
at  bar,  and  even  if  any  of  them  maj'  be 
considered  as  leaning  in  the  direction 
claimed,  in  view  of  the  fact  that  the  de- 
cisions in  this  state  are  to  the  contrary, 
they  are  not  decisive  of  the  question  con- 
sidered. There  was  sufficient  evidence  of 
the  defendant's  negligence  to  submit  the 
case  to  the  consideration  of  the  jury,  as 
was  done.  There  was  no  error  in  the 
charge  of  the  judge,  or  refusals  to  charge 
as  requested,  or  in  any  ruling  on  the  trial. 
The  judgment  was  right,  and  should  be 
affirmed.  All  concur,  except  R.apai.lo,  J., 
•dissenting,  and  Earl,  J.,  not  \oting. 


(94  U.  S.  469.) 

Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogo. 

(Supreme  Court  of  the  United  States.   Oct.  Term, 
1»76. ) 

Negligexce  —  Destrcctiox  of  Improvemext8 
OF  OcccPTiXG  Claimants. 
Under  the  provisions  of  Code  Iowa,  §§  1976-19S1, 
giving  to  an  occupant  of  land  under  color  of  title, 
who  in  good  faith  has  made  valuable  improve- 
ments thereon,  but  is  afterwards  judicially  found 
not  to  be  the  rightful  owner  thereof,  the  right  to 
compensation  for  his  improvements,  the  right  of 
such  an  occupant  to  recover  for  the  willful  or 
negligent  destruction  of  his  improvements  can- 
not be  affected  by  proof  that  the  title  to  the  land 
is  in  another. 

2.  Same — Fikes — Expert  Testimony. 

In  an  action  for  damages  for  the  destruction  of 
plaintiff's  saw-mill  and  lumber  by  fire  communi- 
cated from  defendants'  elevator,  testimony  of  ex- 
perts in  the  business  of  fire  insurance  that,  ow- 
ing to  the  distance  between  the  elevator  and 
plaintiff's  property,  the  former  would  not  be 
considered  in  measuring  the  hazard  of  the  latter, 
is  not  admissible,  the  subject  being  a  matter  of 
common  observation. 

3.  Same — Pkoximate  or   Remote  Consequences. 
To  warrant  a  finding  that  negligence,  or  an  act 

not  amounting  to  wanton  wrong,  is  the  proximate 
cause  of  an  injury,  it  must  appear  that  the  injury 
was  the  natural  and  probable  consequence  of  the 
negligence  or  wrongful  act,  and  that  it  ought  to 
have  been  foreseen  in  the  light  of  attendant  circum- 
stances. When  there  is  no  intermediate  efficient 
cause,  disconnected  from  the  primarj"  fault,  and 
self-operating,  which  produced  the  injury,  the 
original  wrong  must  be  considered  as  reaching 
to  the  effect,  and  proximate  to  it. 

4.  Same. 

Defendants'  elevator,  120  feet  high,  built  of 
pine  lumber,  and  standing  on  the  bank  of  a  river, 
was  set  on  fire  from  a  steam-boat,  also  owned  by 
defendants,  which  made  a  landing  at  the  elevator 
when  an  unusually  strong  wind  was  blowing  to- 
wards it;  and  the  fire  was  communicated  from  the 
elevator  to  plaintiff's  saw-mill,  538  feet  from  the 
elevator,  and  to  his  lumber,  the  nearest  pile  of 
which  was  388  feet  distant  from  the  elevator,  in 
the  direction  in  which  the  wind  was  blowing, 
and  they  were  destroj-ed.  Plaintiff  brought  an 
action  to  recover  damages  therefor  from  defend- 
ants on  the  ground  of  negligence  of  the  latter  in 
setting  fire  to  their  elevator.  Held,  that  it  was 
not  error  to  refuse  to  instruct  the  jury  that  the 
injury  was  too  remote  from  the  negligence  to 
afford  ground  for  a  recovery,  and  to  submit  tc 
them  to  find  whether  the  burning  of  the  mill  and 
lumber  was  the  result  naturally  and  reasonably 
to  be  expected  from  the  bui'ning  of  the  elevator, 
under  the  circumstances,  and  whether  it  was  the 
result  of  the  continued  effect  of  the  sparks  from 
the  steam-boat,  without  the  aid  of  other  causes 
not  reasonably  to  have  been  expected;  and  that  a 
finding  of  the  jury  that  the  burning  of  the  mill 
and  lumber  was  the  unavoidable  consequence  of 
the  burning  of  the  elevator  was,  in  effect,  a  find- 
ing that  there  was  no  intervening  and  independ- 
ent cause  between  the  negligent  conduct  of  de- 
fendants and  the  injury  to  plaintiff. 

Error  to  the  circuit  court  of  the  United 
States  for  the  district  of  Iowa. 

,/obD  \V.  Cnry,  for  plaintiffs  in  error. 
Myron  H.  Beadi,  for  defendant  in  error. 

Strong,  J.  This  was  an  action  to  re- 
cover compensation  for  the  destruction 
by  fire  of  the  plaintiff's  saw-mill  and  a 
quantity  of  lumber,  situated  and  lying  iu 
the  state  of  Iowa,  and  on  the  banks  of  the 
River  Mississippi.  Tliat  the  property  was 
destroyed  by  fire  was  uncontroverted. 
From  the  bill  of  exceptions  it  appears  that 
the   "plaintiff   alleged   the  fire  was   uegli- 


42 


LAW  OF  TORTS. 


gently  communicated  from  the  defendants' 
steam-boat  Jennie  Brown  to  an  elevator 
built  of  pine  lumber,  and  one  luindred  and 
twenty  feet  high,  owned  by  tiie  defend- 
ants, and  standing  on  the  bank  of  the 
river,  and  from  the  elevator  to  the  plain- 
tiff's saw-mill  and  lumber-piles,  while  an 
unusually  strong  wind  was  blowing  from 
the  elevator  towards  the  mill  and  lumber. 
On  the  trial,  it  was  admitted  that  the  de- 
fendants owned  the  steam-ltoat  and  ele- 
vator; that  the  mill  was  five  hundred  and 
thirty-eight  feet  from  the  elevator;  and 
that  the  nearest  of  plaintiff's  i)iles  of  lum- 
ber was  three  hundred  and  eighty-eight 
feet  distant  from  it.  It  was  also  admitted 
that  there  was  conflict  between  the  par- 
ties plaintiff  and  defendant  respecting  the 
ownership  of  the  land  where  the  mill  stood 
and  the  lumber  was  piled,  both  claiming 
under  a  common  source  of  title.  The 
plaintiff  had  built  the  mill,  and  he  was  in 
the  occupation  of  it,  believing  he  had  a 
right  to  be  there.  " 

Such  having  been  the  admissions,  the 
court  refused  to  allow  the  parties  to  try 
the  title  to  the  land  upon  which  the  mill 
and  lumber  had  been  placed,  proof  of  title 
being,  in  the  opinion  of  the  court,  imma- 
terial. To  this  ruling  the  defendants  ex- 
cepted, and  it  is  the  first  error  they  have 
assigned.  AA'e  are  unable  to  perceive  any 
reason  why  the  proof  offered  was  not,  as 
the  circuit  court  held  it  to  be,  perfectly 
immaterial  to  the  issue  between  the  par 
ties.  By  the  law  of  the  state  of  Iowa, 
"  where  an  occupant  of  the  land  has  color 
of  title  thereto,  and  in  good  faith  has 
made  any  valuable  improvements  there- 
on, and  is  afterwards,  in  a  proper  acticMi, 
found  not  to  be  the  rightful  owner  there- 
of, "  he  is  entitled  to  payment  or  credit  for 
the  value  of  his  improvements.  Code 
Iowa.  §§  1976-1981.  The  effect  of  this  stat- 
ute is  to  make  such  an  occupant  prac- 
tically the  owner  of  his  improvements, 
even  though  he  be  not  the  owner  of  the 
land  on  which  they  have  been  made.  If. 
therefore,  the  title  to  the  land  had  been 
shown  to  be  in  the  defendants,  the  proof 
would  not  have  affected  the  right  of  the 
plaintiff  to  recover  compensation  for  will- 
ful or  negligent  destruction  of  the  build- 
ings and  lumber.  Nor  could  it  have 
changed  the  degree  of  prudence  and  care 
which  the  defendants  were  bound  to  exer- 
cise in  order  to  guard  against  injury  to 
that  property.  The  plaintiff  is  not  to  be 
regarded  as  a  mere  trespasser,  wantonly 
thrusting  himself  or  his  property  in  tne 
way  of  danger. — a  trespasser  to  whom  the 
defendants  owed  a  less  degree  of  caution 
than  would  have  been  due  if  he  had  been 
the  undisputed  owner  of  the  fee-simple  of 
the  land  on  which  the  mill  stood.  We  can- 
not admit  that  the  defendants  owed  no 
duty  to  the  plaintiff,  even  if  he  was  occu- 
pying their  land  without  their  ccmsent. 
An  attempt  was  made  during  the  argu- 
ment to  maintain  that  they  had  been 
found  by  the  jury  guilty  only  of  an  act  of 
omission,  and  it  was  insisted  that  such 
an  act  would  not  give  a  right  of  action  to 
the  plaintiff  if  he  was  wrongfully  in  pos- 
session of  their  land.  Neither  the  fact  as- 
serted, nor  the  inference  drawn  from  it, 
can  be  conceded.    The  verdict  of  the  jury 


was:  (1)  That  the  elevator  was  burned 
from  the  steamer  Jennie  Brown  ;  (2)  that 
such  burning  was  caused  by  not  using  or- 
dinary care  and  prudence  in  landing  at  the 
elevator,  under  circumstances  existing  at 
that  particular  time;  and  (3)  that  the 
burning  of  the  mill  and  lumber  was  the 
unavoidable  consequence  of  the  burning 
of  the  elevator.  The  only  reasonable  con- 
struction of  the  verdict  is  that  the  fault  of 
the  defendants — in  other  words,  their  want 
of  ordinary  care  and  prudence— consisted 
in  landing  the  steamer  at  the  elevator  in 
the  circumstances  then  existing,  when  a 
gale  of  wind  was  lilowing  towards  it, 
when  the  elevator  was  so  combustible  and 
so  tall.  If  this  is  not  the  meaning  of  the- 
verdict,  no  act  of  negligence,  or  want  of 
care,  or  of  fault  has  been  found.  And  this 
is  one  of  the  faults  charged  in  the  declara- 
tion. It  averred  that,  while  the  wind  was 
blowing  a  gale  from  the  steam-boat 
towards  and  in  the  direction  of  the  ele- 
vator, the  defendants  carelessly  and  negli- 
gently' allowed,  permitted,  and  counseled,, 
(or.  asstated  in  anothercount,"  directed, ") 
the  steam-boat  to  approach  and  lie  along- 
side of  or  in  close  proximity  to  said  ele- 
vator. This  is  something  more  than  non- 
feasance; it  is  positive  action, — the  result, 
consequence,  or  outworking,  as  the  jury 
have  found  it.  of  the  want  of  such  care  aa 
should  have  been  exercised. 

It  has  been  further  argued  in  support  of 
this  assignment  of  error  that  the  proffered 
proof  of  title  should  have  been  admitted, 
because  it  tended  to  show  contributory 
negligence  on  the  part  of  the  plaintiff. 
But  we  cannot  understand  how  it  could 
have  had  any  such  tendency.  Whether 
tlie  mill  stood  on  the  defendant's  land,  op 
on  the  other  land  equally  distant  from  the 
steamer  and  elevator,  and  in  the  same  di- 
rection, its  exposure  to  the  fire  was  exactly 
the  same. 

A  second  exception  taken  in  the  court 
below,  and  here  insisted  upon,  is  that  the 
court  refused  to  permit  the  defendants  to 
prove  by  witnesses  who  were  experts,  ex- 
perienced in  the  business  of  fire  insurance, 
and  accustomed  by  their  profession  to 
estimating  andcalculatingthe  hazard  and 
exposures  to  fire  from  one  building  to  an- 
other, and  to  fixing  the  rates  of  insurance, 
that,  owing  to  the  distance  between  the 
elevator  and  the  mill,  and  the  distance  be- 
tween the  elevator  and  the  lumber-piles, 
the  elevator  would  not  be  considered  as 
an  exposure  to  the  mill  or  lumber,  and 
would  not  be  considered  in  fixing  a  rate 
thereon,  oi-  in  measuring  the  hazard  of  the 
mill  or  lumber.  This  exception  is  quite 
unsustainable.  The  subject  of  proposed 
inquiry  was  a  matter  of  common  observa- 
tion, upon  which  the  lay  or  uneducated 
mind  is  capable  of  forming  a  judgment.  In 
regard  to  such  matters,  experts  arenot  per- 
mitted to  state  their  conclusions.  In 
questions  of  science  their  opinions  are  re- 
ceived, for  in  such  questions  scientific  men 
have  superior  knowledge,  and  ecenerally 
think  alike.  Not  so  in  matters  of  common 
knowledge.  Thus  it  has  been  held  that  an 
expert  cannot  be  asked  whether  the  time 
during  which  a  railroad  train  stopped  was 
sufficient  to  enable  the  passengers  to  set 
off,  ( Keller  v.  Railroad  Co.,  2 Abb.  Dec.  4S0,) 


GENERAL  PRINCIPLES. 


43 


or  whether  it  was  prudent  to  blow  a 
whistle  at  a  particular  time,  (Hill  v.  Rail- 
road Co.,  55  Me.  438.)  Nor  can  a  person 
conversant  with  real  estate  be  asked  re- 
epectinj^thepeculiarliabilitj'of  unoccupied 
buildings  to  fire.  Mulry  v.  Insurance  Co., 
5  Gray,  541.  In  Durrell  v.  Bederley,  Holt, 
N.  P.  283,  Chief  Justice  Gibbs  said:  "The 
opinion  of  the  underwriters  on  the  materi- 
ality of  facts,  and  theeffectthe3'  would  have 
had  upon  the  premium,  is  not  admissible  in 
evidence."  Pow.  Ev.  (4th  Ed.)  103.  And  in 
Campbell  v.  Rickards.  5  Barn.  &  Adol.  846, 
Lord  De.vmax  said:  "Witnesses  are  not 
receivable  to  state  tiieir  views  on  matters 
of  legal  or  moral  obligation,  nor  on  the 
manner  in  which  others  would  probably 
be  influenced,  if  the  parties  had  acted  in  one 
wa3' rather  than  another."  See,  also.  Lord 
Mansfield's  opinion  in  Carter  v.  Boehm,3 
Burrows,  1905,  1913,  1914,  and  Higgins  v. 
Dewe3',  107  Mass.  494,  in  which  it  was 
ruled  that,  in  an  action  for  kindling  a  fire 
on  the  defendant's  land  so  negligently 
that  it  spread  to  the  plaintiff's  land,  and 
burned  his  timber,  the  opinion  of  a  person 
experienced  in  clearing  land  by  fire,  that 
there  was  no  orobability  that  a  fire  set 
under  the  circumstances  described  by  the 
witnesses  would  have  spread  to  the  plain- 
tiff's land,  was  inadmissible. 

The  next  exception  is  to  the  refusal  of 
the  court  to  instruct  the  jury,  as  request- 
ed, that  "if  they  believed  the  sparks  from 
the  Jennie  Brown  set  fire  to  the  elevator 
through  the  negligence  of  the  defendants, 
and  the  distance  of  the  elevator  from  the 
nearest  lumber-pile  was  three  hundred  and 
eighty-eight  feet,  and  from  the  mill  five 
hundi'ed  and  twenty -eight  feet,  then  the 
proximate  cause  of  the  burning  of  the  mill 
and  lumber  was  the  burning  of  the  eleva- 
tor, and  the  injury  was  too  remote  from 
the  negligence  to  afford  a  ground  for  a  re- 
covery. "  This  proposition  the  court  de- 
clined to  affirm,  and  in  lieu  thereof  sub- 
mitted to  the  jury  to  find  whether  the 
burning  of  the  mill  and  lumber  was  the  re- 
sult naturally  and  reasonably  to  be  ex- 
pected from  the  burning  of  the  elevator; 
whether  it  was  a  result  which,  under  the 
circumstances,  would  naturally  follow 
from  the  burning  of  the  elevator;  and 
whether  it  was  the  result  of  the  continued 
effect  of  the  sparks  from  the  steam-boat, 
without  the  aid  of  other  causes  not  rea- 
sonably to  be  expected.  All  this  is  alleged 
to  have  been  erroneous.  The  assignment 
presents  the  oft-embarrassing  question 
what  is  and  what  is  not  the  proximate 
cause  of  an  injury.  The  point  propound- 
ed to  the  court  assumed  that  it  was  a 
question  of  law  in  this  case,  and  in  its  sup- 
port the  two  cases  of  Ryan  v.  Railroad 
Co.,  35  N.  Y.  210,  and  Railroad  Co.  v.  Kerr, 
62  Pa.  St.  353,  are  relied  upon.  Those 
cases  have  been  the  subject  of  much  criti- 
cism since  they  were  decided,  and  it  ma^' 
perhaps  be  doubted  whether  the^'  have  al- 
ways been  quite  understood.  If  they  were 
intended  to  assert  the  doctrine  that  when 
a  building  has  been  set  on  fire  through  the 
negligence  of  a  party,  and  a  second  build- 
ing has  been  fired  from  the  first,  it  is  a  con- 
clusion of  law  that  the  owner  of  the  sec- 
ond   has    no    recourse    to    the    negligent 


wrong-doer,  they  have  not  been  accepted 
as  authority  for  such  a  doctrine,  even  in 
the  states  where  the  decisions  were  made. 
Webb  V.  Railroad  Co.,  49  N.  Y.  420,  and 
Railroad  Co.  v.  Hope,  80  Pa.  St.  373.  And 
certainly  they  are  in  conflict  with  numer- 
ous other  decided  cases.  Kellogg  v.  Rail- 
road Co.,  26  Wis.  224;  Perley  v.  Railroad 
Co.,  98  Mass.  414;  Higgins  v.  Dewev,  107 
Mass.  494;  Pent  v.  Railroad  Co.,  59  111.  .349. 
The  true  rule  is  that  what  is  the  prtjxi- 
mate  cause  of  an  injury'  is  ordinarily  a 
question  for  the  jury.  It  is  not  a  question 
of  science  or  of  legal  knowledge.  It  is  to 
be  determined  as  a  fact,  in  view  of  the  cir- 
cumstances of  fact  attending  it.  The  pri- 
mary'cause  may  be  the  proximate  cause 
of  a  disaster,  though  it  may  operate 
through  successive  instruments,  as  an  ar- 
ticle at  the  end  of  a  chain  may  be  moved 
by  a  force  applied  to  the  other  end,  that 
force  being  the  proximate  cause  of  the 
movement,  or  as  in  the  oft-cited  case  of 
the  squib  thrown  into  the  market-place. 
Scott  V.  Shepherd,  2  W.  Bl.  892.  The  ques- 
tion always  is,  was  tliere  an  unbroken 
connection  between  the  wrcjngful  act  and 
the  injury, — a  continuous  operation?  Did 
the  facts  constitute  a  continuous  succes- 
sion of  events,  so  linked  together  as  to 
make  a  natural  whole,  or  was  there  some 
new  and  independent  cause  intervening 
between  the  wrong  and  the  injurj'?  It  ia 
admitted  that  the  rule  is  difficult  of  appli- 
cation. But  it  is  generallj'  held  that,  m 
order  to  warrant  a  finding  that  negli- 
gence, or  an  act  not  amounting  to  wan- 
ton wrong,  is  the  proximate  cause  of  an 
injury, it  must  appear  that  the  injury-  was 
the  natural  and  probable  consequence  of 
the  negligence  or  wrongful  act,  and  that 
it  ought  to  have  been  foreseen  in  the  light 
of  the  attending  circumstances.  These 
circumstances,  in  a  case  like  the  present, 
are  the  strength  and  direction  of  the  wind, 
the  combustible  character  of  the  elevator, 
its  great  height,  and  rhe  proximity  and 
combustible  nature  of  the  saw-mill,  and 
the  piles  of  lumber.  Most  of  thpse  circum- 
stances were  ignored  in  the  request  for  in- 
struction to  the  jury.  Yet  it  is  obvious 
that  the  immediate  and  inseparable  conse- 
quences of  negligently  firing  the  elevator 
would  have  been  very  different  if  the  wind 
had  been  less,  if  the  elevator  had  been  a 
low  building  constructed  of  stone,  if  the 
season  had  been  wet,  or  if  the  lumber  and 
the  mill  had  been  less  combustible.  And 
the  defendants  might  well  have  anticipat- 
ed or  regarded  the  probable  consequences 
of  their  negligence  as  much  more  far-reach- 
ing than  would  liave  been  natural  or 
probable  in  other  circumstances.  We  do 
not  say  thateveu  thenatural  and  probable 
consequences  of  a  wrongful  act  or  omis- 
sion are  in  all  cases  to  be  chargeable  to 
the  misfeasance  or  non-feasance.  Tney 
are  not.  when  there  is  a  sufficient  and  in- 
dependent cause  operating  between  the 
wrong  and  the  injury.  In  sucdi  a  case,  tlie 
resort  of  the  sufferer  must  be  to  the  orig- 
inator of  the  intermediate  cause.  But, 
when  there  is  no  intermediate  efficient 
cause,  the  original  "n'rong  must  be  consid- 
ered as  reaching  to  the  effect,  and  proxi- 
mate  to  it.    The  inquiry  must  therefore 


44 


LAW  UF  TORTS. 


always  be  whether  there  was  any  inter- 
mediate cause  disconnected  from  the  pri- 
mary fault,  and  self-operating,  which  pro- 
duced tbe  injury.  Here  lies  the  difticult.y. 
But  the  incjuiry  must  be  answered  in  ac- 
cordance with  common  understanding.  In 
a  succession  of  dependent  events,  an  inter- 
val may  always  be  seen  by  an  acute  mind 
between  a  cause  and  its  effect,  though  it 
may  besoimperceptibleas  tobeoverlooked 
b3'  a  common  mind.  Thus,  if  a  building  be 
set  on  fire  by  negligence,  and  an  adjoining 
building  be  destioyed  without  any  negli- 
gence of  the  occupants  of  the  first,  no  one 
would  doubt  that  the  destruction  of  the 
second  was  due  to  the  negligence  that 
caused  the  burning  of  the  first.  Yet  in 
truth,  in  a  very  legitimate  sense,  the  im- 
mediate cause  of  the  burning  of  the  second 
was  the  burning  of  the  first.  The  same 
might  be  said  of  the  burning  of  the  furni- 
ture in  the  first.  Such  refinements  are  too 
minute  for  the  rules  of  social  conduct.  In 
the  natureof  things,  there  is  in  every  trans-' 
action  a  succession  of  events  more  or  less 
dependent  upon  those  preceding,  and  it  is 
the  province  of  a  jury  to  look  at  this  suc- 
cession of  events  or  facts,  and  asoertain 
whether  they  are  naturally  and  ijrobably 
connected  with  each  other  by  a  continu- 
ous sequence,  or  are  dissevered  by  new 
and  independent  agencies,  and  this  must 
be  determined  in  view  of  the  circumstan- 
ces existing  at  the  time.  If  we  are  not 
mistaken  in  these  opinions,  the  circuit 
court  was  correct  in  refusintr  to  affirm  the 
defendant's  proposition,  and  in  submit- 
ting to  tbe  jury  to  find  whether  the  burn- 
ing of  the  mill  and  lumber  was  a  result 
naturally  and  reasonably  to  be  expected 
from  the  burning  of  the  elevator,  under 
the  circumstances, and  whether  it  was  the 
result  of  the  continued  influence  or  effect 
of  the  sparks  from  the  boat,  without  the 
aid  or  concurrence  of  other  causes  not  rea- 
sonably to  have  been  expected.  The  jury 
found,  in  substance,  that  the  burning  of 
the  mill  and  lumber  was  caused  by  the 
negligent  burning  of  the  elevator,  and  that 
it  was  the  unavoidable  consequence  of 
that  burning.  This,  in  effect,  was  finding 
that  there  was  no  intervening  and  inde- 
pendent cause  between  the  negligent  con- 
duct of  the  defendants  and  the  injury  to 
the  plaintiff.  The  judgment  must  there- 
fore be  affirmed. 


(5  Cow.  331.) 

Moody  v.  Baker. 

{Supreme  Coxtrt  of  New  York.    Feb.  Term,  1826. ) 

1.  Slander  —  Special  Damage  —  Breaking  Off 

Marriage. 
An  action  may  be  maintained  for  words  spoken 
of  plaintiff  by  defendant,  whereby  a  contract  of 
marriage  between  plaintiff  and  another  person 
was  broken  off  by  the  latter,  although  such  words 
are  not  in  themselves  actionable,  and  although 
plaintiff  has  a  remedy  against  such  other  person 
for  breach  of  the  contract.  Vicars  v.  Wilcocks, 
8  East,  1,  disapproved. 

2.  Same — Evidence. 

In  such  an  action,  a  conversation  between  the 
person  who  had  so  broken  his  contract  to  marry 
plaintiff  and  another,  not  offered  to  support  testi- 


mony given  by  the  former  as  a  witness  in  the  case, 
but  as  independent  evidence,  is  not  admissible. 

Savage,  C.  J.,  dissenting. 

Motions  in  arrest  of  judgment  and  for  a 
new  trial. 

Action  for  slander.  The  declaration  al- 
leged a  contract  of  marriage  between 
plaintiff  and  one  Parkman  Baker;  that 
defendant,  to  prevent  such  intended  niar- 
riagf,  stated  to  said  Parkman  Baker  liiat 
he  had  carnal  intercourse  with  plaintiff, 
by  reason  whereof  said  P.arkman  Baker 
refust-d  to  marry  plaintiff.  At  the  trial, 
the  judge  refused  to  allow  one  Halsey 
Phelps,  a  witness  for  defendant,  to  testify 
to  a  conversation  between  himself  and 
Parkman  liaker,  who  was  also  a  witness; 
the  purpose  for  which  such  evidence  was 
offered  being  toshfjw  that  Parkman  Baker 
had  not  been  influenced  to  break  off  the 
marriage  by  what  defendant  had  said. 
The  jury  found  a  verdict  for  plaintiff.  De- 
fendant movpd  in  arrest  of  judgment,  on 
the  ground  that  the  declaration  was  in- 
sufficient. He  also  made  a  motion  for  a 
new  trial,  mainly  on  an  objection  to  the 
exclusion  of  said  testimony  of  Halsev 
Phelps. 

J.  L.  Richardson  and  T.  J.  Oakly,  for 
the  motions.    A.  Spencer,  opposed. 

By  the  Court,  per  Woodworth,  J. 
The  words  spoken  are  not  in  themselves 
actionable.  If  the  action  is  sustainable, 
it  must  be  on  the  ground  of  special  dam- 
age. It  is  contended  on  the  part  of  the 
defendant  that  no  action  can  be  main- 
tained on  the  facts  alleged  in  the  declara- 
tion. The  case  of  Vicars  v.  Wilcocks,  8 
East,  1,  is  relied  on  as  an  authority  in  point. 
In  that  caseit  was  held  that,  when  special 
damage  is  necessary  to  sustain  an  action 
for  slander,  it  is  not  sufficient  to  prove  a 
mere  wrongful  act  of  a  third  person,  in- 
duced by  the  slander,  but  the  special  dam- 
age must  be  a  legal  and  natural  conse- 
quence of  the  words  spoken.  It  appeared 
that  in  consequence  of  speaking  the  words 
the  plaintiff  had  been  dismissed  from  his 
employment  before  the  end  of  the  term  for 
which  he  bad  contracted.  Lord  Ellex- 
BOKOL'GH  proceeded  on  the  ground  that 
this  was  an  illegal  consequence, — a  mere 
wrongful  act  of  the  master,  for  which 
the  defendant  was  not  answerable, — and 
inquired  whether  any  case  could  be  men- 
tioned of  an  action  of  this  sort  sustained  by 
proof  only  of  aii  injury  by  tbe  tortious 
act  of  a  third  person.  If  the  doctrine  here 
advanced  is  well  founded,  it  disposes  of 
the  case  before  us.  Tbe  learned  judge  does 
not  refer  to  any  autboritj'  in  support  of 
tbe  decision.  In  my  view,  it  seems  to  be 
a  departure  from  well-established  princi- 
ples, applicable  to  this  species  of  action. 
Morris  v.  Langdale,  2  Bos.  &  P.  2S4,  was 
cited  on  the  argument  as  supporting  the 
doctrine  laid  down  by  Lord  Ellenbok- 
OUGH.  Tbe  plaintiff  in  that  case  stated 
that  he  was  a  dealer  in  the  funds,  and  as 
such  had  been  accustomed  to  contract; 
that  the  defendant  said  of  bim,  as  such 
dealer, "Heis a  lame  duck, "in  consequence 
of  which  divers  persons  refused  to  fulfill 
their  contracts  with  him,  and  he  was  pre- 


GENERAL  PKINCIPLES. 


45 


vented  from  fulfilling  his  contracts  with 
other  persons.  It  was  held  that  itdid  not 
sufficiently  appear  either  that  the  words 
were  spoken  of  la  wful  contracts,  or  that 
the  plaintiff  was  a  lawful  dealer  in  the 
funds,  and  tliat  tlie  declaration  was  there- 
fore bad.  Part  of  the  fiTHvanien  was  that 
divers  persons  refused  to  fulfill  their  con- 
tracts. If  the  test  is  that  the  special  dam- 
aj?e  must  he  lej^ral  and  natural  conse- 
(juencc  of  the  words  spoken,  anrl  that  the 
plaintiff  is  not  entitled  to  recover  because 
he  liaci  a  riffht  of  action  on  his  contract, 
it  is  surprising-  that  this  jjround  had  not 
l)een  taken  by  the  counsel  who  argued. 
But  it  is  not  even  suggested.  The  opin- 
ion of  the  court  also  seems  to  be  placed 
on  othf'r  grounds.  It  is  true,  Lord  Eldon 
observed  that  a  doubt  had  arisen  in  the 
mind  of  the  court  whether  the  special 
damage  had  been  so  laid  as  to  support  the 
action,  and  that,  if  the  ijlnintitl'  liad  sus- 
tained any  damage  in  conseqiience  of  the 
refusal  of  any  persons  to  perform  their 
lawful  contracts  with  him,  it  is  damage 
whi'-h  may  be  compensated  in  actions 
brought  by  the  plaintiff  against  those 
persons.  These  remarks  were  not  neces- 
sary to  the  decision  of  tlie  cause.  Admit- 
ting tliem.  however,  to  be  correct,  the  case 
was  not  like  the  present.  If  persons  had 
refused  to  fulfill  their  contracts  with  the 
plaintiff,  he  was  entitled  to  recover  dam- 
ages. The  court  probably  considered  it 
substantiallj'  a  contract  f(u"  tlie  payment 
of  niouL-y,  in  which  case  the  refusal  ti)  pay 
by  the  debtor  in  consequence  of  the  speak- 
ing of  slanderous  words  would  not  be  a 
ground  of  special  damage.  Most,  if  not 
all,  the  cases  for  loss  of  marriage,  to  be 
met  with  in  ths  books,  allege  a  communi- 
cation or  treaty  of  marriage  only,  and 
that  the  marriage  was  lost  by  reason  of 
speaking  the  words.  Davis  v.  Gardiner, 
4  ("oke,  17;  Southold  t.  Daunston,  Cro. 
Car.  2()<.);  Brian  v.  Cockman,  Id.  322;  Hol- 
wood  V.  Hopkins,  Cro.  Eliz.  7S7. 

By  a  communication  or  treaty  of  mar- 
riage must,  I  think,  be  understood,  that 
the  pai-ties  had  contracted  to  marry  each 
other.  If  this  had  not  taken  place,  how 
can  it  be  said,  ct)rrectly,  that  a  marriage 
v\  as  lost?  In  this  case  a  valid  contract  of 
marriage  is  set  out  in  the  declaration. 
That  the  action  can  be  maintained  will 
not  be  questioned,  if  it  be  shown  that  the 
law  has  given  this  remedy-  in  cases  analo- 
gous and  similar  in  principle.  It  is  a  gen- 
eral rule  that,  where  a  man  has  a  tempo- 
ral loss  oj"  damage  by  the  wrong  of  an- 
other, he  may  have  an  action  on  the  case, 
to  be  repaired  in  damages.  1  Com.  Dig.  tit. 
"Action  on  the  Case,"  A.  p.  178.  If  a  par- 
ty has  several  remedies  for  the  same 
thing,  he  has  an  election  to  pursue  either. 
Co.  Litt.  145,  a.  But,  after  having  recov- 
ered satisfaction  for  the  injury  from  one 
person,  he  cannot  afterwards  proceed 
against  any  other  person  for  a  further 
satisfaction.  Bird  v.  Randall,  3  Bur- 
rows. 1354.  The  case  of  Bird  v.  Kandall,  3 
Burrows,  1345,  was  twice  argued,  and  de- 
cided after  gr^at consideration.  The  prin- 
ciples recognized  and  acted  upon  by  the 
court,  if  sound,  are,  in  my  mind,  decisive 
of  The  present  question.  It  appeared  that 
one    Burford,  by    articles    of    agreement, 


covenanted  to  serve  the  plaintiff  for  five 
years  as  a  journeyman,  and  bound  himsel^ 
in  tlie  pen  airy  of  £100.  After  continuing 
a  part  of  the  time,  tlie  defendant  prcjcured 
and  enticed  him  to  depart,  wiiich  he  ac- 
cordingly did.  The  plaintiff  sued  Durford 
for  the  penalty,  and  recovered  judgment 
against  him,  but  the  money  was  not  actu- 
ally paid  until  after  the  commencement  of 
the  action  against  the  defendant.  The 
question  was  whether  it  was  maintaina- 
ble. It  is  remarkable  that  the  point 
whether  the  action  could  be  sustained 
(inasmuch  as  the  plaintiff  had  a  remedy 
on  the  contract)  was  not  even  hinted  at 
by  the  court  or  counsel.  It  is  manifest 
that  no  such  notion  of  the  law  was  then 
entf^rtained ;  for  Lord  Mansfield,  avIio 
delivered  the  opinion  of  the  court,  ob- 
served that  the  case  turned  upon  two 
points:  (1)  Whether  the  plaintiff  could 
maintain  the  action  if  the  £100  recovered 
against  the  servant  had  been  actuallj'  re- 
ceived before  the  commencement  of  the 
action  ;  and,  (2)  if  it  could  not,  whetlier 
the  receipt  of  the  money  subsequently 
would  vary  the  case.  I  cannot  well  con- 
ceive of  a  more  perfect  recognition  that 
the  fact  of  an  existing  remedy  on  the  con- 
tract formed  no  objection.  All  the  rea- 
soning of  his  lordship  goes  clearly  to 
prove  this.  The  ground  upon  which  he 
places  the  decisiim  is  that  satisfaction 
had  already  been  received,  which  implies 
that,  if  it  had  not,  there  was  no  obstacle 
in  the  way.  This  case  is  very  analogous 
to  the  one  before  us.  In  each  there  was  a 
contract  between  the  plaintiff  and  anoth- 
er person,  and  In  each  the  attempt  was  to 
recover  damages  by  proof  of  an  injury 
sustained  by  the  tortious  act  of  a  third 
person.  If.  then,  the  principle  recognized 
in  Bird  v.  Randall  would  authorize  a  re- 
covery, when  there  was  a  contract  of 
service,  upon  which  damages  might  be  re- 
covered, I  think  it  will  apply  with  great- 
er force  when  there  has  been  a  contrtvct  of 
marriage,  and  performance  of  it  refused 
in  consequence  of  the  slander  of  the  de- 
fendant. A  contract  of  marriage  looks 
principally  to  a  specific  execution.  It  is  of 
a  very  different  nature  and  character  from 
the  preventing  of  the  fulfillment  of  a  con- 
tract to  pay  a  sum  of  money.  In  the  lat- 
ter case,  the  non-fulfillment  of  the  contract 
by  means  of  a  third  person  would  have 
no  effect  on  the  ability  of  the  contracting 
party;  whereas,  in  a  case  of  the  specific 
execution  of  a  contract  to  marry,  its  val- 
ue does  not  depend  on  the  ability  of  a  per- 
son to  pay  damages.  It  is.  indeed,  a 
temporal  loss,  but  of  a  character  not 
capable  of  being  wholly  repaired  by  the 
payment  of  money, — the  only  substitute 
the  law  has  devised.  But  there  are  other 
cases  which  rest  on  the  same  principle. 
If  one  slanders  my  title,  whereby  I  am 
wrongfully  disturbed  in  my  possession, 
though  I  have  a  remedy  against  the  di.s- 
turber,  yet  I  may  have  an  action  against 
him  that  caused  the  disturbance.  1  Bac. 
Abr.  tit.  "Action  on  the  Case,  "p.  98:  New- 
man V.  Zachary,  Aleyn,  3.  This  is  equally 
against  the  doctrine  of  Lord  Ellenbor- 
ouGH,  for  here  damages  are  given  which 
were  caused  bj*  the  tortious  act  of  a  third 
person.     Again,  in   the  action  for  enticing 


46 


LAW  OF  TORTS. 


away  another's  servant,  the  servant  is  al- 
wa3's  liable,  and  yetthe  law  is  well  settled 
that  the  seducer  is  also  liable.  Retina  v. 
Callingwood,  2  Ld.  Raym.  1116:  Hart  v. 
Aldridge,  Cowp.  54;  Reeve,  Dom.  Rel.  376; 
4  Bac,  Abr.  593.  The  doctrine  contended 
for  strikes  at  the  root  of  society,  and,  in 
my  view,  overturns  some  of  the  well-set- 
tled and  revered  principles  of  the  common 
law.  I  cannot,  therefore,  doubt  that  the 
declaration  contains  a  good  cause  of  ac- 
tion, and  that  the  motion  in  arrest  of 
judgment  should  be  denied. 

The  next  question  is  whether  there  is 
ground  for  a  new  trial.  The  plain  tiff 
proved  the  speaking  of  the  words,  and 
there  existed  a  contract  of  marriage  be- 
tween Parkman  Bake)*  and  the  plaintiff. 
This  was  proved  by  the  admissions  and 
confessions  of  the  defendant.  He  con- 
fessed that  the  day  had  been  fixed  for 
their  marriage.  The  marriage  was  brok- 
en off.  It  is  proven  that  the  defendant 
admitted  he  had  told  P.  Baker  these 
things,  (meaning  his  pretended  illicit  in- 
tercourse with  the  plaintiff,)  and  that  he 
had  once  prevented  their  marriage,  and 
wished  yet  to  do  so,  and  desired  others  to 
assist  him  in  preventing  it.  The  inference 
from  all  this  is  not  only  that  he  once  pre- 
vented it  by  his  slanders,  which  is  enough 
to  maintain  the  action,  but  that  he  en- 
tirely frustrated  the  marriage.  The  facts 
offered  to  be  proved  by  Halsey  Phelps,  so 
far  as  respects  Parkman  Baker,  were  not 
offered  as  confirmatory  of  the  evidence 
given  by  him,  nor  to  show  that  he  had 
mfide  declarations  consistent  with  what 
he  had  sworn.  The  offer  was  to  prove  a 
conversation  between  two  persons,  not 
parties  to  the  suit,  to  make  out  a  fact, 
that  P.  Baker  was  not  influenced  by  his 
father's  slanders;  but  the  offer  went  to 
what  Phelps  had  told  P.  Baker,  as  well 
as  what  P.  Baker  had  told  the  witness. 
As  to  the  declarations  of  Phelps,  they 
wereclearly  inadmissible.  When  the  judge 
rejected  the  evidence  offered  as  one  con- 
nected proposition,  if  the  defendant  in- 
tended or  wished  to  prove  P.  Baker's  dec- 
larations to  Phelps,  as  showing  the  con- 
sistency of  his  evidence,  it  was  the  duty 
of  the  counsel  to  offer  it  in  that  light,  and 
with  that  view.  The  languaga  of  the 
judge  must  have  been  that  he  could  not 
admit  a  conversation  between  two  per- 
sons, not  parties  to  the  action,  to  be  giv- 
en in  evidence.  It  is  manifest  the  defend- 
ant did  not  wish  to  give  in  evidence  P. 
Baker's  declaration  unaccompanied  with 
what  Phelps  told  him.  If  the  latter 
was  not  admissible,  then  the  evidence  of- 
fered was  rightly  rejected.  The  credibility 
of  Parkman  Baker  was  a  question  for  the 
jur3'  to  decide.  From  the  facts  in  the  casp, 
the3^  were  fully  warranted  in  disi'egard- 
Ing  his  testimony.  The  damages,  al- 
though liberal,  are  not  so  extravagant 
as  to  require  the  interposition  of  the 
court.  There  are  no  grounds  to  believe 
the  jury  were  influenced  by  pa ssi(jn,  prej- 
udice, or  partiality.  The  motion  for  a 
new  trial  must  be  denied. 

Savage,  C.  J.,  dissented. 

Motion  denied. 


(6  Q.  B.  Div.  33.3.) 

BowEN  V.  Hall  et  al. 

(Court  of  Appeal.    Feb.  5,  1881.) 

Inducing  Breach  of  Contract — Proximate  Con- 
sequences. 
A  person  who  maliciously  induces  another  tc 
break  a  contract  made  by  the  latter  with  an  em- 
ployer for  his  exclusive  personal  services,  where 
such  breach  would  naturally  cause,  and  does  in 
fact  cause,  injury  to  the  employer,  is  liable  to 
the  emploj-er  therefor,  even  though  the  relation 
between  the  employer  and  employed  may  not  be, 
strictly  and  for  all  purposes,  that  of  master  and 
servant.  The  injurj^  in  such  case  is,  in  law  as 
well  as  in  fact,  a  natural  and  probable  conse- 
quence of  the  wrongful  act.  Decision  of  the  ma- 
jority of  the  judges  in  Lumley  v.  Gye,  2  El.  & 
Bl.  216,  approved.     Coleridge,  C.  J.,  dissenting. 

Appeals  from  qupen's  bench  division. 

Action  by  Edward  Bo  wen  as  against 
defendants  Hall  and  Fletcher,  for  wrong- 
fully enticing  away  and  keeping  the  other 
defendant,  Pearson,  from  the  plaiutiff'a 
employment,  and  for  wrongfully  receiving 
and  harboring  him  after  notice  of  his  be- 
ing the  servant  ol  plaintiff;  and,  as 
against  defendant  Pearson,  for  unlawful- 
ly, and  against  the  will  of  plaintiff,  de- 
parting from  the  service  of  plaintiff.  It 
appeared  that  plaintiff  carried  on  the  busi- 
ness of  a  brick-maker,  and  that  in  June, 
1S:77,  defendant  Pearson  entered  into  a 
written  contract  with  plaintiff,  whereby 
defendant  agreed,  for  the  consideration 
of  certain  prices  named,  "to  find  all  labor 
for  the  whole  manufacture, in  a  workman- 
like manner,  of  best  quality  white-glazed 
bricks  and  baths,  (with  exception  of 
hooping  the  baths  and  preparing  the  clay 
mass,)  in  such  quantities  as  you  require 
and  when  you  require,"  and  deliver  any 
where  thej'  might  be  required  on  plaintiff's 
premises;  and  also  agreed  not  to  engage 
himself  "to  any  one  else  for  a  term  of  five 
years;"  and  plaintiff  agreed  tothe  forego- 
ing conditions,  amd  to  supply  clay  for  the 
manufacture  of  said  goods,  and  also  to 
find  all  materials  ( with  the  exception  of 
bod3'  and  glaze,  which  defendant  Pearson 
agreed  to  find)  and  tools,  "and  not  en- 
gage any  one  else  for  the  same  work  for  a 
term  of  five  j'ears."  Plaintiff  alleged  that 
the  manufacture  of  white-glazed  bricks 
and  baths  according  to  said  samples  was 
a  secret  known  to  defendant  Pearson  and 
only  a  few  others,  and  that  defendant 
Hall,  who  was  a  manufacturer  of  white- 
glazed  bricks  and  baths  in  the  neighbor- 
hood of  plaintiff,  did  not  know  of  the 
method  of  manufacture  which  Pearson 
used,  and  that  therefore  the  bricks  and 
baths  he  manufactured  were  inferior  to 
those  manufactured  by  Pearson  on  ac- 
count of  plaintiff.  The  complaint  of  plain- 
tiff, for  which  this  action  was  brought, 
was  that  in  May,  1S78,  defendants  Hall 
and  Fletcher  (the  latter  being  HalTs  man- 
ager) wrongfully  induced  Pearson,  contra- 
ry to  his  said  agreement  with  plaintiff,  to 
depart  from  the  exclusive  service  of  plain- 
tiff, and  to  manufacture  on  account  of  the 
defendant  Hall  glazed  bricks  and  batha 
such  as  he  had  contracted  to  manufact- 
ure for  plaintiff.  Plaintiff  claimed  dam- 
ages, not  against  all  the  defendants,  but 
against  only  the  two  defendants.  Hall  and 
Fletcher.     He  also   claimed  an   injuncti<<^ 


GENERAL  PRINCIPLES. 


47 


to  restrain  these  rlefendants  from  employ- 
ing flefendant  Pearson  to  1)0  work  for 
tliera  at  brick  mal<ing  or  glazing,  and  lie 
claimed  an  injunction  to  restrain  defend- 
ant Pearson  from  engaging  himself  to  de- 
fendants Hall  and  Fletcher  until  the  expi- 
ration of  his  said  contract  of  service  with 
plaintiff.  An  interim  injunction  in  the 
terms  claimed  was  granted  by  Field,  J., 
as  against  all  the  defendants.  The  action 
was  tried  before  Manisty,  J.,  who  held 
that  there  was  no  evidence  to  enable 
plaintiff  to  maintain  his  action  against 
defendants  Hall  and  Fletcher,  and  he 
therefore  directed  a  verdict  to  be  entered 
for  those  defendants;  ami,  as  regarded  de- 
fendant Pearson,  the  learned  judge  was  of 
opinion  that,  as  that  defendant  had  not 
acted  or  threatened  to  act  contrary  to 
the  interim  injunction,  there  was  nothing 
to  justify  making  such  injunction  perpet- 
ual. Plaintiff  afterwards  applied  for  and 
obtained  a  rule  nisi  against  all  the  defend- 
ants for  a  new  trial.  The  queen's  bench 
division  made  such  rule  absolute  as  | 
against  defendants  Hall  and  Fletcher,  but  j 
it  discharged  the  rule  as  to  defendant' 
Pearson.  Defendant.-?  Hall  and  Fletcher 
appealed  to  the  court  of  appeal  against 
the  order  for  a  new  trial,  and  there  was 
a  cross-appeal  by  plaintiff  against  the  or- 
der discharging  the  rule  as  to  defendant 
Pearson. 

Argued  before  Lord  Srlborne,  L.  C, 
Lord  CoLEKiDGK,  C.  J.,  and  Brett,   L.   J. 

H.  Matthpws,  Q.  C,  and  Mr.  Anstip,  for 
plaintiff.  Mr.  Jell,  Q.  C,  and  J.  O.  (iriffits, 
Q.  C,  for  defendants  Hall  and  Fletcher. 
A.  T.  Lawrence,  for  defendant  Pearson. 

During  the  argument  the  court  expressed 
themselves  to  be  satisfied  that  there  was 
evidence  to  goto  the  jury  as  against  all 
the  defendants.  An  unsuccessful  attempt 
was  made  by  counsel  for  defendants  to 
distinguish  the  present  case  from  that  of 
Lumley  v.  Gye,  2  El.  &  Bl.  216,  22  Law  J. 
Q.  B.  463,  on  the  ground  thai  there  was 
nothing  in  the  terms  of  the  contract  be- 
tween plaintiff  and  Pearson  to  require 
the  personal  services  of  the  latter.  On 
the  part  of  plaintiff  it  was  contended  that 
thei-e  existed  between  Pearson  and  plain- 
tiff the  strict  relationship  of  master  and 
servant,  but  that,  if  not,  then  the  case 
came  witiiin  the  authority  of  Lumley  v. 
Gye.  It  became  necessary,  therefore,  to 
determine  whether  the  judgment  of  the 
majority  of  the  judges  wiio  decided  Lum- 
ley V.  Gye,  or  that  of  the  dissenting  judge, 
(Coi-EHiDGE,  J., )  was  to  be  supported  by 
acourt  of  appeal.  On  this  point  the  court 
took  lime  to  consider  its  judgment,  and 
counsel  in  the  meanwhile  were  to  be  at 
liberty  to  furnish  the  court  wi^h  a  refer- 
ence to  any  further  authority  bearing  on 
the  decision  in  that  case.  The  following 
authorities  were  afterwards  furnislied  to 
the  court,  viz.:  Evans  v.  Walton,  L.  R. 
2  C.  P.  615;  ('attle  v.  Water-Works  Co.. 
L.  R.  10  Q.  B.  453;  Haskins  v.  Royster, 
16  Amer.  Rep.  "SO;  Burgess  v.  Carpenter, 
Id.  643;  Bixby  V.  Dunlap,  22  Amer.  Rep. 
475,  and  note  at  the  end  of  that  case;  Bry- 
an V.  State.  44  Ga.  328;  and  Walker  v. 
Cronin,  107  Mass.  555. 

BuETT,  L.  J.    The  lord  chancellor  agrees 


with  me  in  the  judgment  I  am  about  to 
read,  and  it  is  to  be  taken,  therefore,  as 
the  judgment  of  the  lord  chancellor  as 
well  as  of  myself. 

In  this  case,  we  were  of  opinion  at  the 
hearing  that  the  contract  was  one  for 
personal  service,  though  not  one  which 
established  strictly,  for  all  purposes,  the 
relation  of  master  and  servant  between 
the  plaintiff  and  Pearson.  We  were  of 
opinitm  that  there  was  evidence  to  justify 
a  finding  that  Pearson  had  been  induced 
by  the  defendants  to  break  his  contract 
of  service;  that  he  had  broken  it,  and  bad 
tiiereby.  in  fact,  caused  some  injury  to  the 
plaintiff.  We  were  of  opinion  that  the  act 
of  the  defendants  was  done  with  knowl- 
edge of  the  contjact  between  the  plaintiff 
and  Pearson  ;  was  done  in  order  to  ob- 
tain an  advantage  for  one  of  the  defend- 
ants at  the  expense  of  the  plaintiff;  was 
done  from  a  wrong  motive,  and  would 
therefore  justify  a  finding  that  it  was 
done  in  that  sense  maliciously.  There 
remained,  nevertheless,  the  question 
whether  there  was  any  evidence  to  be  left 
to  the  jury  against  the  defendants  Hall 
and  Fletcher,  it  being  objected  that  Pear- 
son was  not  a  servant  of  the  plaintiff. 
The  case  was  accurately  within  the  au- 
thoritv  of  tiie  case  of  Lumley  v.  Gye,  2  El. 
&  Bl.  216,  22  Law  J.  Q.  B.  463.  If  that 
case  was  rightly  decided,  the  objection  in 
this  case  failed.  Tiie  only  question,  then, 
which  we  took  time  to  consider,  was 
whether  the  decision  of  the  majority  of  the 
judges  in  that  case  should  be  supported  in 
acourt  of  error.  That  case  was  so  ela- 
borately discussed  by  the  learned  judges 
who  took  part  in  it  that  little  more  can 
be  said  about  it  than  whether,  after  care- 
ful consideration,  one  agrees  either  with 
the  judgments  of  the  majority,  or  with 
the  most  careful,  learned,  and  able  judg- 
ment of  Mr.  Justice  Coleridge.  The  de- 
cision of  the  majority  will  be  seen,  on  a 
ca'-eful  consideration  of  their  judgments, 
to  have  been  founded  upon  two  chains  of 
reasoning.  First,  that  wherever  a  man 
does  an  act  which  in  law  and  in  fact  is  a 
wrongful  act,  and  such  an  act  as  may.  as 
a  natural  and  i)robable  consequence  of  it, 
produce  injury  to  another,  and  which  in 
the  particular  case  does  produce  such  an 
injury,  an  action  on  the  case  wdl  lie.  This 
is  the  proposition  to  be  deduced  from  the 
case  of  .\shby  v.  White,  1  Smith  Lead.  Cas. 
(Sth  Ed.)  264.  If  these  conditions  are  sat- 
isfied, the  action  does  not  the  less  lie  be- 
cause the  natural  and  probable  conse- 
quence of  the  act  complained  of  is  an  act 
done  by  a  third  person  ;  or  because  such 
act  so  done  by  the  third  person  is  a  breach 
of  duty  or  contract  by  him,  or  an  act  ille- 
gal on  his  part,  or  an  act  otiierwise  im- 
posing an  actionable  liabilit\'  on  him.  It 
has  been  said  that  the  law  implies  that 
the  act  of  the  third  i)arty,  beingoue  which 
he  has  free  will  and  power  to  do  or  not  to 
do.  is  his  own  willful  act,  and  therefore  is 
not  the  natural  or  probable  result  of  the 
defendant's  act.  In  many  cases  that  may 
be  so.  but,  if  the  law  is  so  to  imply  in 
everj'  case,  it  will  be  an  implication  con- 
trary to  manifest  truth  and  fact.  It  has 
been  said  that  if  the  act  of  the  third  pei'- 
sou  is  a  breach  of  duty  or  contract  by  him. 


48 


LAW  OF  TOUTS. 


oris  an  act  wliicli  it  is  illeual  for  him  to 
do,  the  law  will  n<jt  recognize  that  it  is  a 
natural  or  probable  consequence  of  the  de- 
fendant's act.  Again,  if  that  were  so  held 
in  all  cases,  the  law  would  in  some  refuse 
to  recognize  wtiat  is  manifestly  true  in 
fact.  If  the  judgment  of  Lord  Ellexboe- 
OUGH  in  Vicars  v.  v^  Ucocks,  8  East,  1, 
2  Smith  Lead.  Cas.  (8th  Ed.)  554,  requires 
this  doctrine  for  its  support,  it  is,  in  our 
opinion,  wrong.  We  are  of  opinion  that 
the  propositions  deduced  above  from 
Ashby  V.  White  are  coiTect.  If  they  be 
applied  to  such  a  case  as  Lumley  v.  Gye. 
the  question  is  whether  all  the  conditions 
are  by  such  a  case  fulfilled.  The  first  is 
that  the  act  of  the  defendants  which  is 
complained  of  must  be  an  act  wrongful  in 
law  and  in  fact.  Merely  to  persuade  a  per- 
son to  break  his  contract  may  not  be 
wrongful  in  law  or  fact,  as  in  the  second 
case  put  by  Coleridge.  J.  2  El.  &  Bl.,  at 
page  247.  But  if  the  persuasion  be  used 
for  the  indirect  purpose  of  injuring  the 
plaintiff,  or  of  benefiting  the  defendant  at 
the  expense  of  the  plaintiff,  it  is  a  mali- 
cious act.  which  is  in  law  and  in  facta 
wrong  act,  and  therefore  a  wrongful  act, 
and  therefore  an  actionable  act,  if  injury 
ensues  from  it.  We  think  that  it  cannot 
be  doubted  that  a  malicious  act,  such  as 
is  above  described,  is  a  wrongful  act  in 
law  and  in  fact.  The  act  comi)lained  of  in 
such  a  case  as  Lumle.v  v.  Gye,  and  which 
is  complained  of  in  the  present  case,  is 
therefore,  because  malicious,  wrongful. 
That  act  is  a  persuasion  by  the  defendant 
of  a  third  person  to  break  a  contract  ex- 
isting between  such  third  person  and  the 
plaintiff.  It  cannot  be  maintained  that 
it  is  not  a  natural  and  probable  conse- 
quence of  that  act  of  persuasion  that  the 
third  i)erson  will  break  his  contract.  It 
is  not  only  the  natural  and  probable  con- 
sequence, but,  by  the  terms  of  the  propo- 
sition which  involves  the  success  of  the 
persuasion,  it  is  the  actual  consequence. 
Unless  there  be  some  technical  doctrine  to 
oblige  one  to  say  so,  it  seems  impossible 
to  say  correctly,  in  point  of  fact,  that  the 
breach  of  contract  is  too  remote  a  conse- 
quence of  the  act  of  the  defendants.  The 
technical  objections  alluded  to  above  have 
been  suggested  as  the  consequences  of  the 
judgment  in  Vicars  v.  Wilcocks,  8  East,  1, 
2  Smith  Lead.  Cas.  (Sth  Ed.)  554.  But 
that  judgment,  when  so  used  or  relied  on, 
seems  to  us  to  be  disapproved  in  the  opin- 
ions given  in  the  house  of  lords  in  Lynch 
V.  Knight,  9  H.  L.  Cas.  577,  and  seems  to 
us  when  so  used  to  be  unreasonable.  In 
the  case  of  Lumley  v.  Gye,  and  in  the  pres- 
ent case,  the  third  condition  is  fulfilled, 
namely,    that   the  act    of    the    defendant 


caused  an  injury  to  the  plaintiff,  unless 
again  it  can  be  said  cijrrectlj'  that  the  in- 
jury is  too  remote  from  the  cause.  But 
that  raises  again  the  same  question  as 
has  been  just  dismissed.  It  is  not  too  re- 
mote if  the  injury  is  the  natural  and  prob- 
able consequence  of  the  alleged  cause. 
That  is  stated  in  all  the  opinions  in  Lynch 
V.  Knight  The  injury  is  in  such  a  case, 
in  law  as  well  as  in  fact,  a  natural  and 
probable  consequence  of  the  cause,  be- 
cause it  is  in  fact  the  consequence  of  the 
cause,  and  there  is  no  technical  rule 
against  the  truth  being  recognized.  It 
follows  that  in  Lumlej'  v.  G3-e,  and  in  the 
present  case,  all  the  conditions  necessary 
to  maintain  an  action  on  the  case  are  ful- 
filled. Another  chain  of  reasoning  was  re- 
lied on  by  Che  majority  in  Lumley  v.  Gye, 
and  powerfully  combated  by  Coleridge, 
J.  It  was  said  that  the  contract  in  ques- 
tion was  witliin  the  principle  of  the  stat- 
ute of  laborers;  that  is  to  say,  that  tlie 
same  evil  was  produced  by  the  same 
means,  and  that  as  the  statute  made  such 
means,  when  employed  in  the  case  of 
master  and  servant,  strictly  so  called, 
wrongful,  the  common  law  ought  to  treat 
similar  means,  employed  with  regard  to 
parties  standing  in  a  similar  relation,  as 
also  wrongful.  If,  in  order  to  support 
Lumley  v.  Gye,  it  had  been  necessary  to 
adopt  this  proposition,  we  should  have 
much  doubted,  to  say  the  least.  The  rea- 
soning of  Coleridge,  J.,  upon  the  second 
head  of  his  judgment,  seems  to  us  to  be  as 
nearly  as  possible,  if  not  quite,  conclu- 
sive. But  we  think  it  is  not  necessary  to 
base  the  support  of  the  case  upon  this  lat- 
ter proposition.  We  think  the  case  is  bet- 
ter supported  upon  the  first  and  larger 
doctrine,  and  we  are  therefore  of  opinion 
that  the  judgment  of  the  queen's  bench 
division  was  correct,  and  that  the  princi- 
pal appeal  must  be  dismissed. 

Selborxe,  L.  C,  added  the  judgment  of 
the  court  that  the  cross-appeal  of  plain- 
tiff against  the  order  discharging  as  to 
the  defendant  Pearson  the  rule  for  a  new 
trial  should  be  allowed,  and  that  there 
should  be  a  new  trial  as  to  all  the  defend- 
ants. 

Coleridge,  C.  J.,  dissented,  holding  that 
Lumley  V.  Gye,  2E1.&B1.  216,  Law  J.  22  Q. 
B.  463,  should  be  overruled,  and  that  the 
action  against  the  defendants  Hall  and 
Fletcher  was  not  maintainable;  but  as 
to  defendant  Pearson  agreeing  with  the 
rest  of  the  court. 

Appeal  of  defendants  Hall  and  Fletcher 
dismissed;  cross-appeal  of  plaintiff  as  to 
defendant  Pearson  allowed. 


(See  also,  Scheffer  v.  Railroad  Co.,  105  tJ.  S.  249:  Ehrgott  v.  Mavor  of  New  York,  96  N.  Y.  264; 
Bunting  v.  Hogsett,  139  Pa.  St.  363,  21  All.  Rep.  81,  33,  34;  Adams  v.  Young,  44  Ohio  St.  80,  4  N.  E. 
Rep.  599;  Railroad  Co.  v.  Pennell,  110  IlL  435;  Hughes  v.  McDonough,  43  N.  J.  Law,  459;  Lumley  v. 
Gye,  2  EL  &  BL  216.) 


GENEltAL  PKINCIPLEb. 


i9 


Torts,  as  distinguislied  from  crimes,  do  not,  in  general,  involve  a 
"wrongful  intent. 


(T.  Raym.  467.) 
Bessey  v.  Olliot  et  al. 

(Court  of  King's  Bench.     Trinity  Term,  1682.) 

Trespass — Ixtext. 

An  action  may  bo  maintained  for  a  trespass  al- 
thoush  tliere  was  no  wrongful  intent  on  the  part 
of  defendant,  the  ground    of  recovery  being  com 
pensation  for  the  loss  or  damage  suffered. 

Error  to  common  pleas. 

Action  b3^  Bessey  against  Olliot  and 
Lambert  for  assault  aud  false  imprison- 
ment. The  foUowinjz;  is  an  extract  from 
the  report  of  the  decision  : 

In  all  civil  acts  the  law  doth  not  so 
much  regard  the  intent  of  the  actor  as  the 
loss  and  damage  of  the  party  suffering; 
and  therefore  Mich.,  0  E.  4,  7,  pi.  IS. 
Trespass  Qf/tire  W  et  arm /s  cluusuw  fivffit 
and  hevbnw  siinm  jjedibus  conculcurido 
o.oiisunipsit  in  six  acres.  The  defendant 
pleads  that  he  hath  an  acre  lying  next  the 
said  six  acres,  and  upon  it  a  hedge  of 
thorns,  and  he  cut  the  thorns,  and  they 
ipso  invito  fell  upon  the  plaintiff's  land, 
and  the  defendant  took  them  off  as  soon 
as  he  could,  which  is  the  same  trespass; 
and  the  plaintiff  demurred;  and  adjudged 
for  the  plaintiff ;  for,  though  a  man  doth 
a  lawful  thing,  yet,  if  any  damage  do 
thereliy  befall  another, he  shall  answer  for 
it,  if  he  could  have  avoided  it.  As  if  a  man 
lop  a  tree,  and  the  boughs  fall  upon  an- 
other ipso  invito,  yet  an  action  lies.  If  a 
man  shoot  at  buts,  and  hurt  another  un- 
awares, an  action  lies.  I  have  land 
thrtnigh  which  a  river  runs  to  your  mill, 
and  I  lop  the  fallows  growing  upon  the 
river-side,  which  accidentally  stop  the  wa- 
ter, so  as  your  mill  is  hindered,  an  action 
lies.  If  I  am  building  my  own  house,  and 
a  piece  of  timber  falls  on  my  neighbor's 
house,  and  breaks  part  of  it,  an  action 
lies.  If  a  man  assault  me,  aud  I  lift  up  my 
staff  to  defend  myself,  and  in  lifting  it  up 
hit  another,  an  action  lies  by  that  person, 
and  yet  I  did  a  lawful  thing.  And  the  rea- 
son of  all  these  cases  is  because  he  that 
is  damaged  ought  to  be  recompensed.  But 
otherwise  it  is  in  criminal  cases,  for  there 
actus  non  facit  reuw  nisi  mens  sit  rea. 


(Hobart,  134.) 
Weaver  v.  Ward. 
{Court  of  King's  Bench.) 
Assault  and  Battery — Intent. 

Plaintiff  was  wounded  by  the  discharge  of  a 
musket  by  defeudant  while  both  were  engaged  in 
military  exercise  as  members  of  the  same  com- 
pany. Held,  that  it  was  not  a  defense  to  a  civil 
action  therefor  to  plead  that  the  injury  was  unin 
tentional  on  defendant's  part,  for  no  man  shall  b 
excused  of  a  trespass,  except  it  may  be  judged 
utterly  without  his  fault. 

Weaver  brought  an  action  of  trespass 
of  assault  and  battery  against  Ward. 
The  defendant  pleaded  that  he  was,  among 
others,  by  the  commandment  of  the  lords 
of  the  council,  a  trained  soldier  in  London, 
of  the  band  of  one  Andrews,  captain,  and 
so  was  the  plaintiff;  and  that  they  were 
skirmishing  with  their  muskets  charged 
with  powder  for  their  exercise  in  re  mili- 
CHASE — 4 


tari,  against  another  captain  and  his 
band*  and,  as  they  were  so  skirmishing, 
the  defendant,  casuuliler  et  per  infortu- 
nium et  contra  volnntatem  snani,  in  dis- 
charging of  his  piece,  did  hurt  and  wound 
the  plaintiff;  which  is  the  same,  etc., 
absque  iioc,  that  he  was  guilty  aliter  sive 
alio  niodo.  And.  upon  demurrer  by  the 
plaintiff,  judgment  was  given  for  him  ;  for 
though  it  were  agreed  that  if  men  tilt  or 
t<jurney  in  the  presence  of  the  king,  or  if 
two  masters  of  defense,  playing  their  prizes, 
kill  one  another,  this  shall  be  no  felony ; 
or  if  a  lunatic  kill  a  man,  or  the  like; 
because  felony  must  be  done  animo  feloni- 
co;  yet  in  trespass  wnich  tends  only  to 
give  damages  according  t(j  hurt  or  loss,  it 
is  not  so;  and  therefore,  if  a  lunatic  hurt 
a  man, he  shall  be  answerable  in  trespass; 
and  therefore  no  man  shall  be  excused  of 
a  trespass,  (for  this  is  the  nature  of  an 
excuse,  and  not  of  a  justification,  prout  ei 
bene  licuit;)  except  it  may  be  judged  ut- 
terly without  his  fault;  as  if  a  man  by 
force  take  jny  hand  and  strike  3'ou  ;  or  if 
here  the  defendant  had  said  that  the 
plaintiff  ran  cross  his  piece  when  it  was 
discharging;  or  had  set  forth  the  case 
with  the  circumstances;  so  as  it  had  ap- 
peared to  the  court  that  it  had  been  in- 
evitable, and  that  the  defendant  had  com- 
mitted no  negligence  to  give  occasion  to 
the  hurt. 


(19  Johns.  3S1.) 

GuiLLE  v.  Swan. 

(Supreme  Court  of  New  York.    Jan.  1822.) 

Trespass  to  Land — Intent. 

A  balloon  in  which  defendant  had  ascended 
near  plaintiff's  garden  descended  into  the  garden, 
with  plaintiff's  body  hanging  out  of  the  car,  so 
that  he  was  in  much  danger.  He  called  for  help, 
and  a  crowd  of  persons  broke  into  the  garden,  and 
plaintiff's  vegetables  and  flowers  were  beaten 
down  by  the  balloon  and  by  the  people.  Held, 
that  defendant  was  liable  for  all  the  damage  so 
sustained  by  plaintiff,  although  the  injury  done 
by  himself  was  involuntary,  and  although  his 
ascending  in  the  balloon  was  not  an  unlawful  act. 

Certiorari  to  review  a  judgment  of  a  jus- 
tice of  the  peace. 

Action  of  trespass  by  Swan  against 
Guille.  Defendant  had  ascended  in  a  bal- 
lo(jn  in  the  vicinity  of  plaintiff's  garden, 
but  theballoon descended  into  the  garden, 
and  defendant,  whose  body  was  hang- 
ing out  of  the  car  in  a  very  perilous  posi- 
tion, called  for  help  to  a  person  working  iu 
plaintiff's  field.  More  than  200  people 
broke  through  plaintiff's  fences  into  his 
garden,  and  his  vegetables  and  flowers 
were  trodden  and  beaten  down  by  them, 
and  by  the  balloon,  which  dragged  over 
them  about  30  feet,  when  defendant  was 
taken  out.  The  damage  done  by  defend- 
ant and  his  balloon  amounted  to  about 
$15,  but  the  crowd  did  much  more,  and 
the  total  damage  to  plaintiff  was  §90.  At 
the  trial  before  a  justice  of  the  peace,  he 
instructed  the  jury  that  defendant  was  lia- 
ble for  the  damage  done  to  plaintiff  by  the 
crowd  as  well  as  that  done  by  defendant 


50 


LAW  OF  TORTS. 


himself.  The  jury  found  a  Terdict  for 
plaintiff  for  $90,  and  judgment  for  plain- 
tiff was  entered  thereon.  To  review  the 
judgment  plaintiff  brought  certiorari. 

Spencer,  C.  J.  The  counsel  for  the 
plaintiff  in  error  supposes  that  the  injury 
committed  by  his  client  was  involuntary, 
and  that  done  by  the  crowd  was  volun- 
tary, and  that,  therefore,  there  was  no  un- 
ion of  intent;  and  that,  upon  the  same 
principle  which  would  render  Guille  an- 
swerable for  the  acts  of  the  crowd,  in 
treading  down  and  destroying  the  vegeta- 
bles and  flowers  of  S.,  he  would  be  re- 1 
sponsible  for  a  battery  or  a  murder  com- 
mitted on  the  owner  of  the  premises.  The  | 
intent  with  which  an  act  is  done  is  by  no 
means  the  test  of  the  liability  of  a  party 
to  an  action  of  trespass.  If  the  act  cause 
the  immediate  injury,  whether  it  was  in- 
tentional or  unintentional,  trespass  is  the 
proper  action  to  redress  the  wrong.  It 
was  so  decided,  upon  a  review  of  all  the 
eases,  in  Percival  v.  Hickey,  18  Johns.  257. 
Where  an  immediate  act  is  done  by  the 
co-operation  or  the  joint  act  of  several 
persons,  they  are  all  trespassers,  and  may 
be  sued  jointly  or  severally  ;  and  any  one 
of  them  is  liable  for  the  injury  done  by  all. 
To  render  one  man  liable  in  trespass  for 
the  acts  of  others,  it  must  appear,  either 
they  acted  in  concert,  or  that  the  act  of 
the  individual  sought  to  be  charged  ordi- 
narily and  naturally  produced  the  acts  of 
the  others.  The  case  of  Scott  v.  Shepherd, 
2  W.  Bl.  892,  is  a  strong  instance  of  the  re- 
sijonsibility  of  an  individual  who  was  the 
first,  though  not  the  immediate,  agent  iu 
producing  an  injury.  Shepherd  threw  a 
lighted  squib, composed  of  gunpowder,  in- 
to a  market-house  where  a  large  concourse 
of  people  were  assembled.  It  fell  on  the 
standing  of  Y.,  and,  to  prevent  injury,  it 
was  thrown  off  his  standing,  across  the 
market,  where  it  fell  on  another  standing. 
From  thence,  to  save  the  goods  of  the 
owner,  it  was  thrown  to  another  part  of 
the  market-house,  and,  in  so  throwing  it, 
it  struck  the  plaintiff  in  the  face,  and, 
bursting,  put  out  one  of  his  eyes.  It  was 
decided,  by  the  opinion  of  three  judges 
against  one,  that  Shepherd  was  answ^era- 
ble  in  an  action  of  trespass  and  assault 
and  battery.  De  Grey,  C.  J.,  held  that 
throwing  the  squib  was  an  unlawful  act, 
and  that,  whatever  mischief  followed, 
the   person  throwing  it  was  the  author  of 

(See,  also,  Striegel  v.  Moore,  55  Iowa,  88,  7  N.  W.  Rep.  413,  [trespass  to  lands;]  Anderson  v.  Ar- 
nold's Ex'r,  79  Ky.  370;  Chapman  v.  State,  78  Ala.  463,  [assault  and  battery;]  Boyce  v.  Brockway,  31 
N.  Y.  490;  HoUins  v.  Fowler,  L.  R.  7  H.  L.  757,  [cases  of  conversion.]  But  iu  such  torts  as  fraud, 
malicious  prosecution,  and  other  wrongs  involving  malice,  a  wrongful  intent  is  necessary.  See  the 
cases  hereinafter  on  these  topics.) 


the  mischief.  All  that  was  done  subse- 
quent to  the  original  throwing  was  a  con- 
tinuation of  the  first  force  and  first  act. 
Any  innocent  person  removing  the  danger 
from  himself  was  justifiable;  the  blame 
lights  on  the  first  thrower;  the  new  direc- 
tion and  new  force  flow  out  of  the  first 
force.  He  laid  it  down  as  a  principle  that 
every  one  who  does  an  unlawful  act  is 
considered  as  the  doer  of  all  that  follows. 
A  person  breaking  a  horse  in  Lincolns-Iun- 
Fields  hurt  a  man,  and  it  was  held  that 
trespass  would  lie.  In  Leame  v.  Bray,  3 
East,  595,  Lord  Ellexborough  said  :  "  If  I 
put  in  motion  a  dangerotis  thing,  as  if  I 
let  loose  a  dangerous  animal,  and  leave  to 
hazard  what  may  happen,  and  mischief 
ensue,  lam  answerable  in  trespass;  and 
if  one, "  he  saj-s,  "put  an  animal  or  car- 
riage in  motion,  which  causes  an  immedi- 
ate injury  to  another,  he  is  the  actor, — the 
causa  causans."  I  will  not  say  that  as- 
cending in  a  balloon  is  an  unlawful  act, 
for  it  is  not  ho;  but  it  is  certain  that  the 
aeronaut  has  no  control  over  its  motion 
horizontally.  He  is  at  the  sport  of  the 
winds,  and  is  to  descend  when  and  how 
he  can.  His  reaching  the  earth  is  a  mat- 
ter of  hazard.  He  did  descend  on  the 
premises  of  the  plaintiff  below\  at  a  short 
distance  from  the  place  where  he  ascend- 
ed. Now,  if  his  descent,  under  such  cir- 
cumstances, would  ordinarily  and  nat- 
urally draw  a  crowd  of  people  about 
him,  either  from  curiosity,  or  for  the  pur- 
pose of  rescuing  him  from  a  perilous  situ- 
ation, all  this  he  ought  to  have  foreseen, 
and  must  be  responsible  for.  Whether  the 
crowd  heard  him  call  for  help  or  not  is  im- 
matsrial.  He  had  put  himself  in  a  situa- 
tion to  invite  help,  and  they  rushed  for- 
ward, impelled,  perhaps,  by  the  double 
motive  of  rendering  aid,  and  gratifying  a 
curiosity  which  he  had  excited.  Can  it  be 
doubted  that,  if  the  plaintiff  in  error  had 
beckoned  to  the  crowd  to  come  to  his  as- 
sistance, he  w^ould  be  liable  for  their  tres- 
pass in  entering  the  inclosure?  I  think 
not.  In  that  case  they  would  have  been 
co-trespassers,  and  we  must  consider  the 
situation  in  which  he  placed  himself,  vt)l- 
untarilyand  designedly,  asequivalent  to  a 
direct  request  to  the  crowd  to  follow  him. 
In  the  present  case,  he  did  call  for  help, 
and  may  have  been  heard  by  the  crowd. 
He  is  therefore  undoubtedly  liable  for  all 
the  injury  sustained. 
Judgment  affirmed. 


Lunatics  liable  for  torts. 


(132  Mass.  87.) 

MoR.\iN  V.  Devlin. 

{Supreme  Judicial  Cortrt  of  Massachusetts. 
Jan.  3,  1882.) 

Negligence — Dangerous  Pkemises — Insanity  of 
Owner. 
The  owner  of  a  building  may  be  liable  for  per- 
sonal injuries  to  another  caused  by  the  defective 
condition  of  the  building,  although  such  owner  is 


insane,  and  a  guardian  has  been  appointed  for  him, 
and  has  the  care  and  management  of  his  estate. 

Exceptions  from  superior  coui't. 

Action  of  tort  by  Sophia  Morain  against 
Margaret  Devlin,  for  personal  injuries  to 
plaintiW,  alleged  to  have  been  caused  by  a 
delect  in  a  door-step  of  a  tenement  build- 
ing belonging  to  defendant.  At  the  trial 
it  was  admitted  that,  since  a  time  sever- 


GENERAL  PRINCIPLES. 


51 


ai  years  before  the  accident  to  plaintiff,  de- 
fendant had  been  insane,  and  had  been 
confined  in  a  hospital  for  lunatics;  and 
that,  at  that  time,  a  guardian  for  defend- 
ant had  been  appointed,  who  had  ever 
since  held  the  appointment,  and  had  had 
the  care  and  management  of  all  the  prop- 
erty of  defendant.  Said  guardian  was 
also  appointed  guardian  ad  litem  for  de- 
fendant. A  request  was  j)resented  to  the 
judge,  on  belialf  of  defendant,  for  an  in- 
struction to  the  jury  that,  on  these  facts, 
as  a  matter  of  law,  the  action  could  not 
De  sustained,  but  the  request  was  I'efused. 
The  jury  found  a  verdict  for  plaintiff. 
Defendant  alleged  exceptions  to  the  re- 
fusal to  give  the  instruction  requested. 

E.  T.  Burley,  for  defendant.  W.  F. 
Moyes,  for  plaintiff. 

Gray,  C.  J.  By  the  common  law,  as 
generally  stated  in  the  books,  a  lunatic 
is  civilly  liable  to  make  com[)ensation  in 
damages  to  persons  injured  by  his  acts, 
although,  being  incapable  of  criminal 
intent,  he  is  not  liable  to  indictment  and 
punisliment.  Bac.  Max.  reg.  7;  Weaver 
V.  Ward,  Hob.  134,  2  Rofle,  Abr.  547; 
1  Hale,  P.  C.  15,  16;  1  Hawk,  c.  1,  §  5; 
Bac.  Abr.  "Idiots  &  Lunatics,"  E;  Hay- 
craft  V.  Creasv,  2  East,  92, 104;  1  Chit.  PI. 
(2d   Amer.  Ed\)  65;  Morse  v.  Crawford,  17 


Vt.  499;  Cross  v.  Kent,  32  Md.  581;  Ward 
V.  Conatser,  4  Baxt.  64;  Bullock  v.  Bab- 
cock,  3  Wend.  391,  393,  394;  Behrens  v.  Mc- 
Kenzie,  23  Iowa,  333,  343;  Bank  v.  Moore, 
78  Pa.  St.  407,  412.  See,  also,  Dickinson 
V.  Barber,  9  Mass.  225;  Brown  v.  Howe,  9 
Gray,  84,  S5.  But  this  case  does  not  re- 
quire tlie  aflirmance  of  so  broad  a  propo- 
sition. This  is  not  an  actiou  for  a  wrong 
(lone  by  the  personal  act  or  neglect  of 
the  lunatic,  but  for  an  injury  suffered  by 
reason  of  the  defective  condition  of  a 
place,  not  in  the  exclusive  occupancy  and 
control  of  a  tenant,  upon  real  estate  or 
which  the  lunatic  himself,  and  not  his 
guardian,  is  the  owner.  Harding  v. 
Larned,  4  Allen,  426;  Harding  v.  Weld.  128 
Mass.  587,  591.  The  owner  of  real  estate 
is  liable  for  such  a  defect,  although  not 
caused  by  his  own  neglect,  but  by  that  of 
l^ersons  acting  in  his  behalf  or  under  con- 
tract with  him.  Loonej-  v.  McLean,  129 
Mass.  33;  Gorham  v.  Gross,  125  Mass.  232; 
Bartlett  v.  Gas-Light  Co.,  117  Mass.  .533. 
And  there  is  no  precedent  and  no  reason 
for  holding  that  a  lunatic,  having  the 
benefits,  is  exempt  from  the  responsibilities 
of  ownership  of  real  estate.  The  ruling 
requested  was  therefore  rightly  refused- 
Exceptions  overruled. 

Morton  and  Allen,  JJ.,  absent. 


(See,  also.  Ward  v.  Conatser,  4  Baxt.  64.    As  to  whether  a  lunatic  will  be  liable  for  libel  or  slander 
the  authorities  are  in  doubt.     Consult  Buswell  on  Insanity.) 


There  is,  ho-wever,  no  liability  in  tort  for  purely  accidental  injuries. 


(6  Cush.  293.) 

Brown  v.  Kendall. 

{Swprem^e  Judicial  Court  of  Massachusetts. 
Oct.  Term,  1850.) 

Assault  and  Battery  —  Unintentional  Injury. 
Defendant,  while  endeavoring  to  part  fighting 
dogs,  one  of  which  was  his  own,  by  striking  them 
with  a  stick,  retreated  backwards  before  them 
towards  the  place  where  plaintiff,  the  owner  of 
the  other  dog,  had  been  standing,  plaintiff  at  the 
same  time  advancing  a  step  or  two  towards  them; 
and  defendant,  in  raising  his  stick  to  strike  the 
dogs,  plaintiff  being  behind  him,  struck  plaintiff 
in  the  eye  with  the  stick,  causing  a  severe  in- 
jury. Held,  that  defendant's  act  in  attempting 
to  part  the  dogs  was  lawful  and  proper,  and  if, 
in  doing  it,  he  used  due  care  and  all  proper  pre- 
cautions to  avoid  hurt  to  others,  the  injury  to 
plaintiff  was  the  result  of  pure  accident,  or  was 
involuntary  and  unavoidable,  and  defendant  was 
not  liable  therefor;  nor  was  he  liable,  even  though 
chargeable  with  some  negligence,  if  plaintiff  was 
also  chargeable  with  negligence  contributing  as 
an  efficient  cause  to  the  injury;  and  the  burden 
was  on  plaintiff,  in  order  to  recover  damages  for 
the  injury,  to  establish  want  of  such  due  care  on 
the  part  of  defendant. 

Exceptions  from  court  of  common  pleas; 
Wells,  C.  J. 

Action  of  trespass  by  George  Brown 
against  George  K.Kendall  for  assault  and 
battery.  Pending  the  suit  defendant  died, 
and  his  executrix  was  substituted.  At 
the  trial  it  appeared  from  the  evidence 
that  while  two  dogs,  belonging,  respect- 
ively, to  plaintiff  and  to  defendant,  were 
fighting,  defendant,  in  order  to  separate 
them,   took   a    stick   and    began   beating 


them.  Plaintiff  was  also  present,  and 
looking  on,  at  the  distance  of  about  a 
rod  from  the  dogs,  and  advanced  a  step 
or  two  towards  them.  The  dogs,  as  they 
struggled  together,  also  approached 
plaintiff,  and  defendant  retreated  back- 
wards from  them,  striking  them  with  the 
stick.  As  defendant  thus  approached 
plaintiff,  having  his  back  towards  the  lat- 
ter, in  raising  his  stick  over  his  shoulder 
to  strike  the  dogs  the  stick  accidentally 
struck  plaintiff  in  the  eye,  and  injured  it 
severely.  Defendant  requested  the  judge 
to  instruct  the  jury  that,  "if  both  the 
plaintiff  and  defendant  at  the  time  of  the 
blow  were  using  ordinary  care,  or  if  at 
that  time  the  defendant  was  using  ordi- 
nary care  and  the  plaintiff  was  not,  or  if 
at  that  time  both  plaintiff  and  defendant 
were  not  using  ordinary  care,  then  the 
plaintiff  could  not  recover;"  and  request- 
ed a  further  instruction  to  the  jury  that, 
"under  the  circumstances,  if  the  plaintiff 
was  using  ordinarj-  care  and  the  defend- 
ant was  not,  the  plaintiff  could  not  re- 
cover, and  that  the  burden  of  jjroof  on  all 
these  propositions  was  on  tlie  plaintiff." 
The  judge  dpclined  to  give  these  instruc- 
tions, and  submitted  the  case  to  the  jury, 
with  instructions  as  follows  :  "If  the  de- 
fendant, in  beating  the  dogs,  was  doing 
a  necessary  act,  or  one  which  was  hia 
dutj',  under  the  circumstances  of  the  case, 
to  do,  and  was  doing  it  in  a  proper  way, 
then  he  was  not  responsible  in  this  ac- 
tion, providing  he  was  using  ordinary 
care  at  the  time   of  the  blow.     If  it  wag 


52 


LAW  OF  TORTS. 


not  a  iiecpssary  act ;  if  he  was  not  in  duty 
bound  to  attempt  to  part  the  dogs,  but 
might  with  propriety  interfere  or  not,  as 
he  chose, — the  defendant  was  responsible 
for  the  consequences  of  the  blow,  unless  it 
appeared  that  he  was  in  the  exercise  of 
extraordinary  care,  so  that  the  accident 
was  inevitable,  using  the  word  '  inevita- 
ble' not  in  a  strict,  but  a  popular,  sense. " 
"If.  however,  the  plaintiff,  when  he  met 
the  injury,  was  not  in  the  exercise  of  ordi- 
nary care,  he  cannot  recover;  and  this 
rule  applies  whether  the  interference  of  the 
defendant  in  the  tight  of  the  dogs  was  nec- 
essary or  not.  If  the  jury  believe  that  it 
was  the  duty  of  the  defendant  to  inter- 
fere, then  the  burden  of  proving  negligence 
on  the  part  of  the  defendant,  and  ordi- 
nary care  on  the  part  of  the  plaintiff,  is 
on  the  plaintiff.  If  the  jury  believe  that 
the  act  of  interference  in  the  fight  was  un- 
necessary, then  the  burden  of  proving  ex- 
traordinary care  on  the  part  of  the  defend- 
ant, or  want  of  ordinary  care  on  the  part 
of  the  plaintiff,  is  on  defendant. "  The 
jury  found  a  verdict  for  plaintiff.  Defend- 
ant alleged  exceptions. 

J.  G.  Abbott,  for  defendant.  B.  F.  But- 
ler and  A.  W.  Furr,  for  plaintiff. 

Shaw,  C.  J.  This  is  an  action  of  tres- 
pass vi  et  urtnis,  brought  by  George 
Brown  against  George  K.  Kendall,  for  an 
assault  and  battery;  and,  the  original  de- 
fendant having  died  pending  the  action, 
his  executrix  has  been  summoned  in.  The 
rule  of  the  common  law  by  which  the  ac- 
tion would  abate  by  the  death  of  either 
party  is  reversed  in  this  commonwealth 
by  statute,  which  provides  that  actions 
of  trespass  for  assault  and  battery  shall 
survive.  Rev.  St.  c.  93,  §  7.  The  facts  .set 
forth  in  the  bill  of  exceptions  preclude  the 
supposition  that  the  blow  inflicted  by  the 
hand  of  the  defendant  upon  the  person  of 
the  plaintiff  was  intentional.  The  whole 
case  proceeds  on  the  same  assumption, 
that  the  damage  sustained  by  the  plain- 
tiff from  the  stick  held  by  the  defendant 
was  inadvertent  and  unintentional;  and 
the  case  involves  the  question  how  far, 
and  under  what  qualifications,  the  party 
by  whose  unconscious  act  the  damage 
was  done  is  responsible  for  it.  "We  use 
the  term  "unintentional"  rather  than  "in- 
voluntary," because,  in  some  of  the  cases, 
it  is  stated  that  tne  act  of  holding  and 
using  a  weapon  or  instrument,  the  move- 
ment of  which  is  the  immediate  cause  of 
hurt  to  another,  is  a  voluntary  act,  al- 
though its  particular  effect  in  hitting  and 
hurting  another  is  not  within  the  purpose 
or  intention  of  the  party  doing  the  act. 

It  appears  to  us  that  some  of  the  con- 
fusion in  the  cases  on  this  subject  has 
grown  out  of  the  long-vexed  question,  un- 
der the  rule  of  the  common  law,  whether 
a  party's  remedy,  where  he  has  one,  should 
be  sought  in  an  action  of  the  case  or  of 
trespass.  This  is  very  distinguishable 
from  the  question  whether  in  a  given  case 
any  action  will  lie.  The  result  of  these 
cases  is  that,  if  the  damage  complained 
of  is  the  immediate  effect  of  the  act  of  the 
defendant,  trespass  vi  et  arniis  lies;  if 
consequential  only,  and  not  immediate, 
case  is  the  proper  remedy,  Leame  v.  Bray, 


3  East,  593;  Huggett  v.  Montgomery, 
(Day's  Ed.)  2  Bos.  &  P.  (N.  R.)  446,  and 
notes.  In  these  discussions,  it  is  frequent- 
ly stated  by  the  judges  that,  when  -nie 
receives  injury  from  the  direct  act  of  an- 
other, trespass  will  lie.  But  we  think  this 
is  said  in  reference  to  the  question  whether 
tresijass  ami  not  case  will  lie,  assuming 
that  the  facts  are  such  that  some  action 
will  lie.  These  dicta  are  no  authority,  we 
think,  for  holding  that  damage  received 
by  a  direct  act  of  force  from  another  will 
be  sufficient  to  maintain  an  action  of  tres- 
pass, whether  the  act  was  lawful  or  un- 
lawful, and  neither  willful,  intentional,  nor 
careless.  In  the  principal  case  cited. 
Leame  v.  Bray,  the  damage  arose  from 
the  act  of  the  defendant  in  driving  on  the 
wrong  side  of  the  road,  in  a  dark  night, 
which  was  clearly  negligent,  if  not  unlaw- 
ful. In  the  course  of  the  argument  of  that 
case,  (page  593,)  Lawrence,  J.,  said: 
"There  certa'nly  are  cases  in  the  books 
where,  the  injury  being  direct  and  imme- 
diate, trespass  has  been  holden  to  lie, 
though  the  injury  was  not  intentional. " 
The  term  "injury"  implies  something 
more  than  damage;  but,  independently 
of  that  consideration,  the  proposition 
may  be  true,  because,  though  the  injury 
was  unintentional,  the  act  may  have  been 
unlawful  or  negligent;  and  the  cases  cited 
by  him  are  perfectly  consistent  with  that 
supposition.  So  the  same  learned  judge,  in 
the  same  case,  says  (page  597:)  "No  doubt 
trespass  lies  against  one  who  drives  a  car- 
riage against  another,  whether  done  will- 
fully or  not.  "  But  he  immediately  adds: 
"Suppose  one  who  is  driving  a  carriage  is 
negligent,  and  heedlessly  looking  about 
him,  without  attending  to  the  road  when 
persons  are  passing,  and  thereby  runs 
over  a  child  and  kills  him,  is  it  not  man- 
slaughter? And,  if  so,  it  must  be  tres- 
pass; for  every  manslaughter  includes 
trespass;"  showing  what  he  understood 
by  a  case  not  willful. 

We  think,  as  the  result  of  all  the  author- 
ities, the  rule  is  correctly  stated  by  Mr. 
Greenleaf  that  the  plaintiff  must  come  pre- 
pared with  evidence  to  show  either  that 
the  intention  was  unlawful,  or  that  the 
defendant  was  in  fault*  for  if  the  injury 
was  unavoidable,  and  the  conduct  of  the 
defendant  was  free  from  blame,  he  will 
not  be  liable.  2  Greenl.  Ev.  §§  85-92; 
Wakeman  v.  Robinson,  1  Bing.  213.  If,  in 
the  ijrosecution  of  a  lawful  act,  a  casual- 
ty purely  accidental  arises,  no  action  can 
be  supported  for  an  injury  arising  there- 
from. Davis  V.  Saunders,  2  Chit.  (539:  Com. 
Dig.  "Battery,"  A,  (Day's  Ed.,)  and 
notes;  Vincent  v.  Stinehour,  7  Vt.  62.  In 
applying  these  rules  to  the  present  case,  we 
can  perceive  no  reason  why  the  instruc- 
tions asked  forby  thedefendant  ought  not 
to  have  been  given,  to  this  effect,  that  if 
both  plaintiff  and  defendant  at  the  time 
of  the  blow  were  using  ordinary  care,  or  if 
at  that  time  the  defendant  was  using  or- 
dinary care,  and  the  plaintiff  was  not,  or 
if  at  that  time  both  the  plaintiff  and  de- 
fendant werenot  using  oi"dinary  care,  then 
the  plaintiff  could  not  recover. 

In  using  this  term  "ordinary  care, "it 
may  be  pi'oper  to  state  that  what  consti- 
tutes ordinary  care  will  vary  with  the  cir- 


GENERAL  PRINCIPLES. 


53 


<;umstances  of  cases.  In  general,  it  means 
that  kind  and  degree  of  care  whicli  pru- 
dent and  cautious  men  would  use,  such 
as  is  required  by  the  exigency  of  the  case, 
and  such  as  is  necessary  to  guard  against 
probable  danger.  A  man  who  should 
ha%'e  occasion  to  discharge  a  gun,  on  an 
open  and  extensive  marsh,  or  in  a  forest, 
would  be  required  to  use  less  circumspec- 
tion and  care  than  if  he  were  to  do  the 
same  thing  in  an  inhabited  town,  village, 
or  city.  To  make  an  accident,  or  casual- 
ty, or,  as  the  law  sometimes  states  it,  in- 
CA'itahle  accident,  it  must  be  such  an  acci- 
dent as  the  defendant  could  not  have 
avoided  by  the  use  of  the  kind  and  degree 
of  care  necessary  to  the  exigency,  and  in 
the  circumstances  in  which  he  was  placed. 

We  are  not  aware  of  any  circumstances 
in  this  case  requiring  a  distinction  be- 
tween acts  which  it  was  lawful  and  prop- 
er to  do  and  acts  of  legal  duty.  There  are 
cases,  undoubtedly',  in  which  officers  are 
bound  to  act  under  process  for  the  legality 
of  which  they  are  not  responsible,  and  per^ 
haps  some  others  in  which  this  distinction 
would  be  important.  We  can  have  no 
doubt  that  the  act  of  the  defendant  in  at- 
tempting to  part  the  fighting  dogs,  one  of 
which  was  his  own,  and  for  the  injurious 
acts  of  which  he  might  be  responsible,  was 
a,  lawful  and  proper  act,  which  he  might 
do  by  proper  and  safe  means.  If.  then,  in 
doing  this  act,  using  due  care  and  all  prop- 
er precautions  necessary  to  the  exigency 
of  the  case,  to  avoid  hurt  to  others,  in  rais- 
ing his  stick  for  that  purpose,  he  accident- 
ally hit  the  plaintiff  in  his  eye,  and  wound- 
ed him,  this  was  the  result  of  pure  acci- 
dent, or  was  involuntary  and  unavoida- 
ble, and  therefore  the  action  would  not  lie. 
Or  if  the  defendant  was  chargeable  with 
some  negligence,  and  if  the  plaintiff  was 
also  chargeable  with  negligence,  we  think 
the  plaintiff  cannot  recover  without  show- 
ing that  tlie  damage  was  caused  wholl3' 
by  the  act  of  the  defendant,  and  that  the 
plaintiff's  own  negligence  did  not  contrib- 
ute as  an  efficient  cause  to  produce  it. 

The  court  instructed  the  jury  that  if  it 
was  not  a  necessary  act,  and  the  defend- 
ant was  not  in  duty  bound  to  part  the 
dogs,  but  might  with  propriety  interfere 
or  not  as  he  chose,  the  defendant  was  re- 
sponsible ior  the  consequences  of  the  blow, 
unless  it  appeared  that  he  was  in  the  exer- 
cise of  extraordinary  care,  so  that  the  ac- 
cident was  inevitable,  using  the  word  not 
in  a  strict,  but  a  popular,  sense.    This  is  to 


be  taken  in  connection  with  the  charge 
afterwards  given,  that,  if  the  jury  believed 
that  the  act  of  interference  in  the  fight 
was  unnecessary,  (that  is,  as  before  ex- 
plained, not  a  duty  incumbent  on  the  de- 
fendant,) then  the  burden  of  proving  ex- 
traordinary care  on  the  part  of  the  defend- 
ant, or  want  of  ordinary  care  on  the  part 
of  plaintiff,  was  on  the  defendant. 

The  court  are  of  opinion  that  these  di- 
rections were  not  conformable  to  law.  If 
the  act  of  hitting  the  plaintiff  was  unin- 
tentional on  the  part  of  the  defendant,  and 
done  in  the  doing  of  a  lawful  act,  then  the 
defendant  was  not  liable,  unless  it  was 
done  in  the  want  of  exercise  of  due  care, 
adapted  to  the  exigency  of  the  case,  and 
therefore  such  want  of  due  care  became 
part  of  the  plaintiff's  case,  and  the  i)urden 
of  proof  was  on  the  plaintiff  to  establish  it. 
2  Greenl.  Ev.  §  85;  Powers  v.  Russell,  13 
Pick.  09,  76;  Tourtellot  v.  Rosebrook,  11 
Mete.  (Mass.)  4()0. 

Perhaps  the  learned  judge,  by  the  u.se  of 
the  term  "extraordinary  care"  in  the 
above  charge,  explained  as  it  is  by  thecon- 
text,  may  haveintended  nothing  raorethan 
that  increased  degree  of  care  and  diligence 
which  the  exigency  of  particular  circum- 
stances might  require,  and  which  men  of 
ordinary  care  and  prudence  would  use  un- 
der like  circumstances  to  guard  against 
danger.  If  such  was  the  meaning  of  this 
part  of  the  charge,  then  it  does  not  differ 
from  our  views  as  above  explained.  But 
we  are  of  opinion  tliat  the  other  (lart  of 
the  charge,  that  the  burden  of  proof  was 
on  the  defendant,  was  incorrect.  Those 
facts  which  are  essential  to  enable  the 
plaintiff  to  recover  he  takes  the  burden  of 
proving.  The  evidence  may  be  offered  by 
the  plaintiff  or  by  the  defendant;  tbeques- 
tion  of  due  care,  or  want  of  care,  ma3'  be 
essentially  connected  with  the  main  facts, 
and  arise  from  the  same  proof ;  but  the 
effect  of  the  rule,  as  to  the  burden  of  jiroof, 
is  this:  that  when  the  proof  is  all  in,  and 
before  the  jury,  from  whatever  side  it 
comes,  and  whether  directly  proved,  or  in- 
ferred from  circumstances,  if  it  appears 
that  the  defendant  was  doing  a  lawful 
act,  and  unintentionally  hit  and  hurt  the 
plaintiff,  then,  unless  it  also  appears  to 
the  satisfaction  of  the  jury  that  the  defend- 
ant is  chargeable  with  some  fault,  negli- 
gence, carelessness,  or  want  of  prudence, 
the  plaintiff  fails  to  sustain  the  burden  of 
proof,  and  is  not  entitled  to  recover. 

New  trial  ordered. 


(See,  also,  Stanley  v.  Powell,  [1S91,]  1  Q.  B.  Div.  (N.  S.)  86;  Brown  v.  Collins,  53  N.  H.  442;  Harvey 
V.  Dunlop,  Lalor  Supp.  193;  Nitro-Glycerine  Case,  15  Wall.  524;  Brown  v.  Boom  Co.,  109  Pa.  St.  57,  1 
Atl.  Rep.  156;  Lansing  v.  Stoue,  37  Barb.  15.) 


54 


LAW  OF  TORTS. 


An  action  upon  tort  lies  for  the  breach  of  a  right  or  duty  created 
by  law,  even  though  the  performance  of  such  right  or  duty 
may  have  been  assumed  by  contract.  In  such  cases  the  plain- 
tiff may  either  sue  ex  conti^ctu  or  ex  delicto. 


(61  Md.  619.) 

Baltimore  City  Pass.  Ry.  Co.  v.  Kemp 
et  ux. 

{Court  of  Appeals  of  Maryland.    July  3, 1884. ) 

1.  Negligence  —  Remote  Coxsequences — Ques- 

tion FOR  Jury. 
By  the  alleged  negligence  of  a  railway  com- 
pany, a  woman,  previously  in  good  health,  was 
injured,  while  a  passenger  on  its  railway,  by  a 
blow  upon  the  breast,  which  Thereafter  continued 
to  be  sore,  until,  within  two  or  three  weeks,  a 
cancer  appeared  there.  There  was  evidence  that 
such  a  blow  might  be  sufficient  to  cause  the  de- 
velopment of  cancer,  although  the  origin  of  a 
cancer,  in  any  particular  case,  cannot  be  certain- 
ly known.  Held,  that  the  question  whether  the 
cancer  was  the  result  of  the  injury  was  one  lor 
the  jury,  upon  the  facts.  Jewell  v.  Railway  Co., 
55  N.  H.  84,  distinguished.  Stone,  J.,  dissent- 
ing. 

2.  Same  —  Breach  of  Ddtt  Arising  from   Con- 

tract— Election  of  Remedy. 
A  common  carrier  of  passengers  owes,  to  a  per- 
son accepted  to  be  carried,  a  duty  to  be  careful, 
irrespective  of  contract,  the  violation  of  which 
duty  is  a  tort,  giving  a  right  of  action;  and  while 
a  passenger  may  sue  for  a  breach  of  contract, 
where  there  is  one,  he  may,  at  his  election,  pro- 
ceed as  for  a  tort,  where  personal  injury  has  been 
suffered  by  the  negligence  or  wrongful  act  of  the 
cax'rier  or  his  agents. 

Motion  for  reargument  of  appeal  from 
circuit  court,  Howard  county.  See  61  Md. 
74. 

Action  by  Charles  E.  Kemp  and  Adaline 
Kemp,  his  wife,  against  the  Baltimore 
City  Passenger  Railway  Company,  for 
personal  injuries  to  the  wife,  alleged  to 
have  been  caused  by  the  negligence  of  de- 
fendant. Evidence  tending  to  show  that 
a  cancer,  from  which  tlie  wife  suffered, 
was  the  result  of  the  injury,  was  given  at 
the  trial,  and  its  substance  was  stated,  in 
the  opinion  of  the  court  on  the  hearing  of 
the  appeal,  as  follows:  "The  evidence 
shows,  clearly  and  without  contradiction, 
that  Mrs.  Kemp  was,  at  the  time  of  the 
accident,  and  for  many  years  prior  there- 
to, apparently  in  good  health  and  condi- 
tion. The  accident  occurred  about  the 
middle  of  May,  1880,  and  a  very  short  time 
thereafter  the  cancer  commenced  its  de- 
velopment on  the  injured  part  of  her  per- 
son. In  her  testimony,  after  describing 
the  manner  in  which  the  accident  occurred, 
and  how  she  was  thrown  against  tlie  rail- 
ing on  the  platform  of  the  car.  as  she  w^as 
about  getting  off,  and  the  hurting  of  her 
right  arm  and  left  breast,  she  states  that 
the  right  arm  was  bruised  and  discolored  ; 
and  where  the  breast  was  struck  it  was 
sore,  and  remained  so  from  that  time  out. 
Prior  to  that  time  she  had  no  pain  or 
soreness;  and  two  or  three  weeks  after- 
wards a  small  lump  appeared  in  the  left 
breast,  which,  upon  being  shown  to  her 
physicians,  was  pronounced  to  be  a  can- 
cer. Dr.  Smith  first  operated  for  its  re- 
moval on  the  8th  of  November,  1880,  when 
It  was  about  the  size  of  an  orange,  and  he 
operated  again  about  thel2th  of  January, 


1881,  when  the  entire  breast  was  removed, 
but  without  success  in  extirpating  the 
roots  of  the  disease.  The  cancer  still  re- 
mains, and  is  pronounced  to  be  incurable. 
The  two  daughters  of  Mrs.  Kemp,  in  their 
testimony,  fully  corroborate  the  state- 
ment of  their  mother  in  regard  to  her  pre- 
vious good  health,  and  ai)parent  freedom 
from  disease,  and  the  subsequent  appear- 
ance and  growth  of  the  cancer.  And  the 
professional  witnesses,  while  they  all  testi- 
fy that  it  is  impossible  to  know  and  be 
certain  as  to  the  origin  of  cancer  in  any 
given  case,  yet  they  all  agree  in  saying 
that  the  blow,  such  as  that  described  by 
Mrs.  Kemp,  was  sufficient  and  may  have 
been  the  cause  of  the  development  of  can- 
cer in  her  case.  In  the  opinion  of  two  of 
the  physicians,  Dr.  Latimer  and  Dr.  Turn- 
er, the  blow  on  the  breast,  as  described 
by  Mrs.  Kemp,  was  not  only  sufficient 
cause  for  the  production  of  the  cancer, 
but  that  they  would  attribute  the  cancer 
to  that  cause;  and,  from  the  coincidences 
of  the  case,  we  must  say  that  their  opinion 
does  not  appear  to  be  unreasonable." 

Defendant  offered  prayer  for  instruc- 
tions to  the  jurj',  one  of  which  was  as  fol- 
lows: "That  there  is  no  legally  sufficient 
evidence  that  the  cancer,  testified  to  by 
the  witnesses  in  this  case,  was  caused  by 
the  negligence  of  the  defendant  or  its  serv- 
ants, and  therefore  the  jury  cannot  take 
the  same  into  consideration  in  estimating 
the  damage  done  to  the  plaintiff  Mrs, 
Kemp  by  the  negligence  of  the  defendant 
or  its  servants,  even  if  they  shall  find  that 
there  was  such  negligence. "  This  the 
court  rejected,  and  granted  the  plaintiff's 
prayer  for  instructions,  and  defendant  ex- 
cepted. The  jury  found  a  verdict  for  plain- 
tiff for  $10,000,  and  judgment  for  plaintiff 
was  entered  thereon.  Defendant  appealed 
from  the  judgment.  On  the  hearing  of  the 
appeal,  the  court  rendered  an  opinion 
affirming  the  judgment.  Thereafter  de- 
fendant moved  for  a  reargument  of  the  ap- 
peal. 

Bernarrl  Carter  and  Arthur  W.  Machen, 
for  the  motion. 

Alvey,  C.  J.  There  has  been  a  motion 
made  in  this  case  for  reargument,  based 
largely  upon  authorities  that  were  not 
brought  to  the  attention  of  the  court  oa 
the  former  hearing,  and  hence  we  depart 
from  the  general  practice  of  disposing  of 
such  motions  without  the  formal  assign- 
ment of  reasons  for  the  action  of  the  court 
thereon. 

Upon  the  question  whether  the  jury 
should  have  been  allowed  to  infer,  upon 
the  evidence  before  them,  that  cancer  was 
the  result  of  the  injury  received  by  the 
plaintiff,  the  defendant  cites  and  relies  up- 
on the  case  of  Jewell  v.  Railway  Co.,  55  N. 
H.  84,  a  case  not  referred  to  on  the  former 
argument.  But  the  facts  of  that  case  are 
so  entirely  different  from  those  of  the  case 
before  us  that  the  analogy  between   the 


GENERAL  PKINCIPLES. 


55 


two  cases  is  but  slight.  In  the  first  place, 
the  party  whose  ne{j;ligence  caused  the  in- 
jury in  that  case  was  not,  according  to  the 
decisi(jn  of  the  court,  the  servant  or  em- 
ploye of  the  defendant,  and  therefore  the 
defendant  was  not  liable  for  his  acts.  In 
the  second  place,  there  was  a  considerable 
length  of  time  intervening  between  the 
time  of  tiie  accident  and  the  death  of  the 
party,  the  latter  in  tlie  mean  time  being 
engaged  in  hard  work,  and  subjected  to 
much  exposure,  and  ail  the  circumstances 
of  the  case  rendered  it  exceedingly  doubt- 
ful whether  there  could  be  any  connection 
between  the  injury  received  by  a  blow  on 
the  right  shoulder,  and  a  cancel"  that  was 
found  to  exist,  by  po.sf  mortem  examina- 
tion, in  the  left  lung  of  the  j3arty,  a  year 
and  a  half  after  the  injury  received.  And 
the  physicians  all  testified  that,  in  their 
opinion,  neither  the  last  sickness  of  the 
part3'  nor  the  cancer  was  in  any  way  at- 
tributable to  thi- injury  previously  received. 
Thecourt,  moreover,  considered  and  deter- 
mined the  case  upon  the  weight  of  evi- 
dence, as  upon  motion  for  a  new  trial, 
and  not  as  upon  a  demurrer  to  the  legal 
sufficiency  of  the  evidence  to  be  submitted 
to  the  jury,  as  in  the  case  before  us.  The 
other  cases  cited  upon  this  question  have 
only  a  remote  or  indirect  bearing,  and  we 
do  not  perceive  that  thej'  are  at  all  in  con- 
flict with  the  opinion  that  has  been  deliv- 
ered in  this  case. 

Since  the  opinion  in  this  case  was  deliv- 
ered, 50  Mich,  has  been  published,  and  that 
volume  contains  the  case  of  Beauchamp  v. 
Mining  Co.,  at  page  163.  In  that  case  a 
boy.  «-hile  passing  on  a  highway,  was  in- 
jured by  being  struck  on  the  side  of  his 
head  by  a  stone  from  a  blast  fired  by  the 
mining  company,  and,  having  died  some 
five  or  six  months  thereafter,  an  action  was 
brought  to  recover  damages  for  his  death, 
caused,  as  it  was  alleged,  bj'  the  negli- 
gence of  the  defendant.  Among  other  de- 
fenses, it  was  alleged,  and  evidence  was 
given  to  show,  that  death  was  not  caused 
by  the  injury,  but  by  specific  or  typical 
pneumonia;  and  the  case  was  sought  to 
be  taken  from  the  jury  upon  the  ground 
that  pneumonia,  and  not  the  injury  re- 
ceived from  the  stone,  was  the  direct  and 
liroximate  cause  of  the  death.  The  physi- 
cian who  attended  the  boy  in  his  sickness 
testified  that  he  died  of  pneumonia,  though 
he  had  been  very  seriously  injured,  and 
"was  paralj'zed  on  oneside,  and  the  chances 
of  recovery  were  against  him.  The  doctor 
said  in  his  testimony:  "I  am  unprepared 
to  say  what  caused  pneumonia  in  this 
case.  In  my  opinion,  it  was  a  sppcific  or 
typical  pneuniwuia;  the  relation  between 
it  and  the  injured  iiead  was  not  close." 
It  was  contended,  however,  for  the  plain- 
tiff, that,  owing  to  the  broken  and  shat- 
tered condition  of  the  boy's  system, 
caused  by  the  injury  received,  and  his  in- 
creased susceptibility  to  cold,  pneumonia 
was  superinduced  and  develoi)ed  as  a  nat- 
ural result  of  the  injury;  and  that  ques- 
tion was  submitted  to  the  jury  upon  the 
evidence,  and  they  found  for  the  plaintiff. 
The  case  was  taken  to  the  supreme  court 
of  Michigan,  and  the  frror  assigned  was 
the  submissioTi  of  the  question  to  and  al- 
lowing the  jury  to  conclude  as  to  whether 


pneumonia  did  in  fact  result  from  and 
was  a  consequence  of  the  injury  received 
by  the  boy.  The  supreme  court  affirmed 
the  ruling  of  the  court  below,  and  held 
that,  "if  the  injury  received  and  sickness 
following  concurred  in  and  contril)uted  to 
the  attack  of  pneumonia,  the  defendant 
must  be  held  responsible  therefor."  .\nd 
so  in  this  case:  If  the  injury  received  by 
Mrs.  Kemp,  by  the  negligence  of  the  de- 
fendant, superinduced  and  contributed  to 
the  production  or  development  of  cancer, 
tlie  defendant  is  responsible  therefor;  and 
the  cancer  is  not  to  be  treated  as  an  inde- 
pendent cause  of  injury  or  suffering,  any 
more  than  pneumonia,  resulting  from  an 
injury  that  rendered  the  system  suscepti- 
ble of  and  liable  to  the  attack,  as  a  nat- 
ural consequence  of  such  injury,  is  to  be 
regarded  as  an  independent  cause  of  death. 
In  both  cases  the  original  injury'  was  the 
prime  cause  that  opened  the  way  to  and 
set  other  causes  in  motion,  which  led  to 
the  fatal  results.  And  the  wrong-doer 
cannot  be  allowed  to  apportion  the  meas 
ure  of  his  responsibility  to  the  initial 
cause.  Whether  the  direct  causal  connec- 
tions exist  is  a  question,  in  all  cases,  for 
the  jury,  upon  the  facts  in  proof. 

There  is  another  ground  upon  which  re- 
argument  of  the  case  is  asked,  and  that  is 
with  respect  to  the  nature  of  the  action, 
and  for  what  nature  and  extent  of  injury 
damages  may  be  allowed  to  be  recovered 
therein.  Thedefendant  insists  that,  while 
the  form  of  action  is  as  for  a  tort,  yet  the 
real  ground  of  the  right  to  recover  in 
this  case  is  simply  for  breach  of  the  con- 
tract to  carry  safely,  and  to  put  the  par- 
ty down  safely.  And  that  being  so,  ac- 
cording to  the  contention,  it  is  insisted 
that,  to  entitle  the  plaintiff  to  damages  by 
reason  of  a  breach  of  the  contract,  the  in- 
jury for  which  compensation  is  asked 
should  be  shown  to  be  such  that  it  may 
fairly  be  taken  to  have  been  contemplat- 
ed by  the  parties  as  the  possible  result  of 
the  breach  of  the  contract;  and  that,  in 
this  case,  no  such  consequence  as  the  pro- 
duction of  cancer  in  the  plaintiff  could 
have  been  anticipated  as  the  probable  re- 
sult of  the  negligent  act  of  the  defendant. 
But  to  this  proposition  we  cannot  agree, 
and,  in  our  opinion,  it  is  not  supported 
by  authority. 

A  common  carrier  of  passengers,  who 
accepts  a  party  to  be  carried,  owesto  that 
party  a  duty  to  be  careful,  irrespective  of 
contract;  and  the  srnvam en  of  an  action 
like  the  present  is  the  negligence  of  the  de- 
fpndant.  The  right  to  maintain  the  ac- 
tion does  not  depend  upon  contract,  but 
the  action  is  founded  upon  the  common- 
law  duty  to  carry  safely;  and  the  negli- 
gent violation  of  tliat  dut3%  to  the  dam- 
age of  the  plaintiff,  is  a  tort  or  wrong 
which  gives  risa  to  the  right  of  action. 
Bretherton  v.  Wood,  3  Brod.  &  B.  54.  If 
this  were  not  so,  the  passenger  would 
occupy  a  more  unfavorable  position  in 
reference  to  the  extent  of  his  right  to  re- 
cover for  injuries  than  a  stranger;  for  the 
latter,  for  anj-  negligent  injur3-  or  wrong 
committed,  can  only  sue  as  for  a  tort, 
and  the  measure  of  the  recovery  is  not  on- 
ly for  the  actual  suffering  endured,  but  for 
all  aggravation  that  ma3' attend  the  com 


56 


LAW  OF  TORTS. 


mission  of  the  wrong;  whereas,  in  the 
case  of  a  passenger,  if  the  contention  of  the 
defemiant  be  supported,  for  thesame  char- 
acter of  injury,  the  right  of  recovery 
would  be  mor?'  restricted.  The  principle 
of  these  actions  against  common  carriers 
of  passengers  is  well  illustrated  bj'  the 
case  of  a  servant  whose  fare  had  been  paid 
by  the  master,  or  the  case  of  a  child  for 
vvlioni  no  fare  is  charged.  In  both  of  the 
cases  mentioned,  though  there  is  no  con- 
tract as  betsveen  the  carrier  and  the  serv- 
ant, or  as  between  the  carrier  and  the 
child,  yet  both  servant  and  the  child  are 
passengers,  and  for  any  personal  injuries 
suffered  by  them,  through  the  negligence 
of  the  carrier,  it  is  clear  they  could  sue 
and  recover;  but  thej' coiild  only  sue  as 
for  a  tort.  Tbe  authorities  would  seem 
to  be  clear  upon  the  subject,  and  leave  no 
room  for  doubt  or  question. 

In  the  case  of  Marshall  v.  Railroad  Co., 
11  C.  B.  G.j5,  in  discussing  the  ground  of 
action  against  a  common  carrier,  Jeijvis, 
C.  J.,  said:  "But  upon  what  principle 
does  the  action  lie  at  the  suit  of  the  serv- 
ant for  his  personal  suffering?  Not  by 
reason  of  any  contract  between  him  and 
the  company,  but  by  reason  of  a  duty  im- 
plied bylaw  to  carry  him  safely."  And 
In  the  same  case  Mr.  Justice  Williams 
said:  "The  case  was,  I  think,  put  upon 
the  right  footing  by  Mr.  Hill,  when  he 
said  that  the  question  turned  upon  the  in- 
quiry whether  it  was  necessary  to  sliow 
a  contract  between  tlie  plaintiff  and  the 
railroad  compan.y.  His  i)roposition  was 
that  this  declaration  could  only  be  sus- 
tained by  proof  of  a  contract  to  carry 
the  plaintiff  and  his  luggage  for  hire  and 
reward  to  be  paid  by  the  plaintiff,  and 
that  the  traverse  of  that  part  of  the  dec- 
laration involves  a  traverse  of  the  pay- 
ment by  the  plaintiff.  I  am  of  opinion 
that  there  is  no  foundation  for  that  prop- 
osition.   It  seems  to  me  that  the  whole 

(See,  also.  Railroad  Co.  v.  Pumphrey,  59  Md.  390;  Boorman  v.  Brown,  3  Q.  B.  511, 11  Clark  &  P.  1; 
Wheeler  v.  Navigation  Co.,  125  N.  Y.  155,  162,  26  N.  E.  Rep.  2i8.) 


current  of  authorities,  beginning  with 
Govett  V.  Radnidge,  3  East,  62,  and  end- 
ing with  Pozzi  V.  Shipton,  8  Adol.  &  E. 
96:3,  establishes  that  an  action  of  this  sort 
is,  in  substance,  not  an  action  of  contract, 
but  an  action  of  tort  against  the  compa- 
ny as  carrier."  And  in  the  subsequent 
case  of  Austin  v.  Railway  Co.,  L.  R.  2  Q, 
B.  442,  Mr.  Justice  Blackburn,  now  Lord 
Blackbuk.n,  in  delivering  his  judgment  in 
that  case,  said  :  "I  think  that  what  was 
said  in  the  case  of  Marshall  v.  Railroad 
Co.,  11  C.  B.  655,  was  quite  correct.  It 
was  there  laid  down  that  the  right  which 
a  passenger  by  railway  has  to  be  carried 
safelj'does  not  depend  on  his  having  made 
a  contract,  but  that  the  fact  of  his  being 
a  passenger  casts  a  duty  on  the  comimny 
to  carry  him  safely."  .\nd  to  the  same 
effect,  and  with  full  approval  of  the  au- 
thorities just  cit>.Hl,  are  the  cases  of  Foulkes 
V.  Railway  Co.,  4  C.  P.  Div.  267.  and 
the  same  case  on  appeal,  5  C.  P.  Div.  157, 
and  Fleming  v.  Railway  Co.,  4  Q.  B.  Div. 
SI.  The  case  of  Bretherton  v  Wood,  3 
Brod.  &.  B.  54,  is  a  direct  authority  upon 
the  question. 

A  passenger  may.  without  doubt,  de- 
clare for  a  breach  of  contract,  where  there 
is  one;  but  it  is  at  his  election  to  ^proceed 
as  for  a  tort,  where  there  has  been  person- 
al injury'  suffered  by  the  negligence  or 
wrongful  act  of  the  carrier,  or  the  agents 
of  the  company;  and,  in  sucli  action,  the 
plaintiff  is  entitled  to  recover  according 
to  the  principles  pertaining  to  that  class 
of  actions,  as  distinguished  from  actions 
on  contract.  And  this  is  the  settled  doc- 
trine and  practice  in  this  state.  Stockton 
V.  Frey,4  Gill, 406;  Railroad  Co.  v.  Blocher, 
27  Md.  277,  2S7 ;  Turnpike  Road  v.  Boone, 
45  Md.  344;  Stokes  v.  Saltonstall,  13  Pet. 
ISl.  The  motion  for  reargument  must  be 
overruled. 

Stone,  J.,  dissented. 


So  a  tort,  as  a  violation  of  legal  duty,  may  involve,  as  one  of  its 
elements,  a  breach  of  contract. 


(87  N.  Y.  382.) 

Rich  v.  New  Yokk  Cent.  &  H.  R.  R.Co. 

(Court  of  Appeals  of  New  York.    Jan.  17, 1882.) 

1.  ToKT  Involving  Breach  of  Contract. 

An  omission  to  perform  a  coutract  obligation 
may  constitute  a  tort,  where  that  omission  is  also 
an  omission  of  a  legal  duty;  and  such  legal  duty 
may  arise,  not  merely  out  of  relations  of  trust 
and  confidence  inherent  in  tbe  nature  of  the  con- 
tract itself,  but  may  spring  from  extraneous  cir- 
cumstances, not  constituting  elements  of  the  con- 
tract, as  such,  although  connected  with  it  and 
dependent  upon  it.  The  duty  and  the  tort  grow 
out  of  the  entire  range  of  facts,  of  which  the 
breach  of  contract  is  but  one. 

2.  Same— Fraud — Evidence. 

The  complaint,  in  an  action  against  a  railroad 
company,  alleged,  in  substance,  that  land  owned 
by  plaintiff,  very  valuable,  but  heavily  mort- 
gaged, had  greatly  depreciated  in  value  in  conse- 
quence of  the  removal  of  defendant's  depot  from 
the  vicinity,  and  could  oulj-  be  restored  to  some- 


thing like  its  former  value,  and  saved  from  the 
sacrifice  of  a  foreclosure  in  a  time  of  depi-ession, 
by  the  prompt  return  of  the  depot  to  its  former 
site;  that,  to  secure  this  result,  plaintiff  surren- 
dered valuable  riparian  rights  to  defendant,  up- 
on its  agreement  to  restore  the  depot  as  soon  as 
practicable;  but  that,  because  of  plaintiff's  re- 
fusal to  consent,  without  compensation  for  dam- 
ages, to  the  closing  of  a  street,  which  would 
have  greatly  injured  his  property,  defendant, 
fully  understanding  plaintiff's  situation,  mali- 
ciously and  willfully  broke  its  agreement,  and 
delayed  a  restoration  of  the  depot,  for  the  ex- 
press purpose  of  preventing  plaintiff  from  being 
enabled  to  ward  off  a  foreclosure,  and  instigated 
a  sale  by  the  mortgagee  under  the  foreclosure 
decree,  at  which  the  property  was  bid  off  by  the 
mortgagee  for  a  comparatively  small  sum;  and 
thereupon  the  street  was  closed,  the  mortgagee 
having  been  induced  to  waive  all  damages  there- 
for, and  the  depot  was  restored.  At  the  trial,  it 
was  conceded  that  a  good  cause  of  action,  sound- 
ing in  tort,  was  stated  in  the  complaint.  Held, 
that  one  separate  and  distinct  unlawful  act  was 


GENERAL  PRINCIPLES. 


57 


alleged,  being  the  unreasonable  delay  in  restoring 
the  depot  to  its  original  location,  which  was  un- 
lawful, not  inherently  or  in  itself,  but  solely  by 
force  of  the  contract  with  plaintiff;  that  the  tort 
pleaded  was  an  actual  and  affirmative  fraud, — 
an  alleged  scheme  to  accomplish  a  lawful  pur- 
pose by  unlawful  means. — the  breach  of  contract 
being  onlj'  one  of  the  elements  which  constituted 
the  tort;  and  that  it  was  error  to  exclude,  as  im- 
material, evidence  offered  bj'  plaintiff  to  prove 
the  agreement  to  restore  the  depot,  and  its  breach, 
the  situation  of  the  parties  in  respect  of  their 
several  properties,  the  existence  of  the  mort- 
gage, and  the  instigation  of  the  foreclosure  by  de 
fendant,  and  statements  by  defendant's  officers  as 
to  their  reasons  for  refusing  to  restore  the  depot. 

Appeal  from  supreme  court,  general 
term,  second  department. 

Action  by  Josiali  Rich  against  the  New 
York  Central  «&  Hudson  River  Railroad 
Companj'.  The  complaint  alleged,  in  sub- 
stance, that  about  the  year  l!S50  plaintiff, 
with  others  who  wei'e  the  owners  of  cer- 
tain lands  in  the  village  oi  Yonkei's,  en- 
tered into  an  agreement  with  the  Hudson 
River  Railroad  Company  to  convey  to 
said  corporation  a  site  for  its  depot,  and 
till  in  the  same,  and  lay  out  and  grade 
xheir  lands  so  as  to  give  convenient  com- 
munication between  the  depot  and  the 
business  portion  of  said  village,  said  com- 
pany agreeing  to  pay  the  actual  cost  of 
tilling  in  the  depot  site,  and  to  erect  and 
ever  after  maintain  its  depot  thereon; 
that  said  agreement  was  carried  out,  the 
site  conveyed,  and  the  depot  erected; 
that  defendant  succeeded  to  the  rights, 
franchises,  and  obligations  of  said  Hud- 
son River  Railroad  Company,  and  plain- 
tiff acciuired  the  titles  of  the  other  owners 
of  said  remaining  lands;  that  there  was  a 
navigable  inlet  crossed  by  said  railroad, 
known  asthe  "Nepperhan"  or  "Saw-Mill" 
river;  that  said  Hudson  River  Railroad 
Company,  having  no  right  to  cut  off  or  ob- 
struct the  navigation  in  said  inlet,  had 
constructed  and  maintained  a  draw- 
bridge over  it;  that  it  subsequently  pro- 
cured the  passage  of  an  act  of  the  legisla- 
ture, authorizing  it  to  bridge  said  inlet 
without  an  opening  or  draw,  on  making 
compensation  to  the  riparian  owners; 
that  defendant,  to  avoid  the  payment  of 
such  ccjmpensation,  "resolved  to  accom- 
plish the  same  object  by  artifice  and 
strategy."  and  so  threatened  said  ripari- 
an owners  that,  unless  they  would  sur- 
render their  rights,  and  consent  to  the 
construction  of  such  bridge,  it  would  re- 
move its  depot,  and.  upon  said  owners  re- 
fusing so  to  do,  did  remove  its  depot  to 
a  point  above  a  third  of  a  milenorth  ;  that 
plaintiff,  a  short  time  previous  to  the 
threatened  removal,  had  borrowed,  on 
his  bond  secured  by  mortgage  on  his  said 
lands,  the  sum  of  $35,000,  most  of  which 
was  exijended  in  erecting  stores  on  his 
said  lands,  directly  opposite  and  about 
]00  feet  south  of  said  dejtot,  and,  if  the 
depot  had  not  been  removed,  could  have 
rented  said  stores  and  the  adjacent  lots 
for  .If 5, 000  per  annum,  and  could  have  sold 
other  lots  for  sufficient  to  pay  off  said 
mortgage,  but  that  in  consequence  of  such 
removal  his  premises  became  wholly  un- 
productive and  unsalable;  that,  in  or- 
der to  have  the  depot  restored  to  its  origi- 
nal site  and  to  save  his  property  from  be- 


ing sacrificed,  he  was  induced  and  coerced 
into  giving  his  consent  to  the  closing  of 
said  draw-bridge,  and  an  agreement  was 
enterea  into  on  March  7,  1877,  by  which 
defendant,  in  consideration  of  such  con- 
sent, agreed  that  it  would,  "as  soon  as 
practicable,  and  within  a  reasonable 
time,  btiild  and  forever  thereafter  main- 
tain its  jjrincipal  passenger  depot  for 
Yonkers"  upon  said  original  site;  that 
defendant  thereupon  removed  the  draw- 
bridge, and  erected  a  permanent  britlge 
over  the  inlet;  that  it  also  erected  a  new 
depot  on  the  old  site,  and  had  the  same 
ready  for  use  about  April  15,  LS78,  but  ab- 
solutely refused  to  open  or  establisii  its 
depot  there  unless  the  common  coun- 
cil of  Yonkers  would  pass  an  ordi- 
nance declaring  and  ordering  the  closing 
of  a  portion  of  a  street  which  crossed  its 
tracks,  so  that  it  could  build  a  fence  in- 
closingsaid  tracks,  which  would  soexclude 
the  plaintiff  and  others  from  the  right  and 
privilege  of  crossing  said  tracks  to  the 
steam-boat  docks  on  the  Hudson  river; 
that  defendant  procured  the  passage  of 
an  act  of  the  legislature  amending  the 
cnarter  of  Yonkers  so  as  to  jjrovide  for 
the  assessment  and  payment  of  damages 
claimed  bj'  the  owners  of  land  injuriously 
affected  by  the  closing  of  a  street;  that 
the  closing  of  said  street  would  have  dam- 
aged plaintiff's  property  to,  at  least,  the 
sum  of  $50,000,  and  would  have  neutral- 
ized, in  great  measure,  all  the  benefits  de- 
rived from  the  restoration  of  the  depot; 
that  plaintiff  and  others  sent  in  remon- 
strances to  the  common  council  against 
such  discontinuance,  and  it  refused  to 
pass  an  ordmance  to  that  effect,  because 
of  the  large  amount  of  damages  tiie  city 
would  have  to  paj' ;  that,  upon  sucli  re- 
fusal being  made  known,  defendant's  offi- 
cers publicly  asserted  that  it  would  never 
open  said  new  depot  until  said  ordinance 
was  passed,  and  would  tear  down  the 
new  depot,  or  use  it  exclusively  for  freight, 
"in  all  of  which  the  defendant  was  actu- 
ated bj'  malice  and  vindictiveness  towards 
plaintiff,  and  a  design  to  crush,  ruin,  and 
destroy  him;"  that  in  consequence  of 
the  removal  of  the  depot,  and  the  conse- 
quent unproductiveness  of  plaintiffs  prop- 
erty, he  was  unable  to  pay  the  interest  on 
said  bond  and  mortgage,  and  foreclosure 
was  commenced,  and  a  decree  of  foreclos- 
ure and  sale  was  made,  but  that  the 
mortgagee  had  foreborne  selling  to  give 
plaintiff  the  benefit  of  the  re-establishment 
of  the  depot;  that  defendant's  officers 
and  agents,  after  the  refusal  of  the  com- 
mf)n  council  to  pass  the  said  ordinance, 
called  upon  the  mortgagee,  and  induced 
it  "to  withdraw  the  grace  and  favor"  ac- 
corded to  plaintiff  and  to  advertise  the 
property  immediately  for  sale,  so  as  to 
cut  off  plaintiff's  claim  for  damages,  the 
mortgagee  having  been  induced  to  wiive 
any  such  claim  ;  that  the  "scheme  or  plan 
which  had  been  so  concocted  and  ar- 
ranged by  and  in  the  interest  and  for  the 
special  benefit  and  advantage  of  the  de- 
fendant, to  enable  it  to  evade  and  violate 
with  impunity  its  aforesaid  covenant 
and  obligation  with  the  plaintiff.  *  »  » 
and  to  escape  the  payment  of  its  fair  and 
just  proportion  of  the  plaintiff's  damages 


53 


LAW  OF  TORTS. 


on  the  closing  of  said  street,  was  fully  car- 
ried out  and  executed  by  the  instigation 
and  connivance  of  the  defendant;"  that 
plaintiff's  entire  property  was  sold  under 
said  decree,  and  bid  off  by  the  mortgagee 
for  $20,000,  and  thereupon  the  ordinance 
was  passed  closing  said  street,  and  defend- 
ant immediately  opened  the  new  depot; 
and  that  "defendant,  by  means  of  the 
wrongs,  injuries,  and  grievances  afore- 
said, and  its  malicious  and  unlawful  ac- 
tions in  doing  as  aforesaid,  has  inflicted 
pecuniary  loss  and  damage  upon  the 
plaintiff  to  the  amount  of  .•||>150,0U0; "  for 
which  sum  judgment  was  asked. 

At  the  trial  plaintiff  offered  in  evidence 
the  agreement  of  1877,  whicii  was  objected 
to  and  excluded  as  irrelevant  and  incom- 
petent. Plaintiff  also  offered  to  show  the 
alleged  bi-each  of  that  contract,  the  value 
of  the  property  conveyed  to  defendant, 
and  the  establishment  of  the  depot  origi- 
nally thereon;  that  defendant  caused  and 
procured  the  sale  of  defendant's  property 
under  the  foreclosure  decree  to  deprive 
him  of  his  claim  for  damages  for  closing 
the  street;  that  it  was  sold  for  less  than 
one-fifth  of  its  value;  that  plaintiff  was 
dispossessed  at  the  instigation  of  defend- 
ant; and  that  if  the  depot  had  i)een  re-es- 
tablished the  market  value  of  the  property 
would  have  been  largely  increased. 
Plaintiff  also  offered  to  prove  an  interview 
with  defendant's  officers  in  reference  to  the 
removal  and  re-establishment  of  the  de 
pot,  and  the  reasons  they  assigned  for  the 
removal  and  refusal  to  restore  it,  and  also 
the  amount  of  damage  sustained  by  plain- 
tiff in  consequence  of  defendant's  omission 
and  refusal  to  re-establish  the  depot  under 
the  agreement  of  1877.  all  of  which  was  ob- 
jected to  and  excluded  on  the  same 
ground. 

Defendant  moved  for  a  dismissal  of  the 
complaint  on  the  following  grounds: 
"First.  Because  the  plaintiff  has  not  laid 
the  foundation,  by  an3^  of  the  several 
agreements  in  evidence,  to  sustain  a  cause 
of  action  for  damages  arising  from  any 
wrongful  act  of  the  defendant  in  respect 
to  the  property  of  the  plaintiff.  Second. 
Because  the  gist  of  this  action  is  the  ma- 
licious and  unlawful  acts  of  the  defendant 
in  pursuing  a  scheme  or  plan  to  injure  the 
plaintiff  b3'  depriving  him  of  his  property, 
based  upon  an  alleged  malicious  violation 
of  certain  alleged  contracts.  The  proof 
offered  fails  to  make  out  any  cause  of  ac- 
tion as  set  forth  in  the  complaint,  and 
would  not  sustain  any  verdict  against  the 
defendant  for  any  damages  in  this  action. 
Third.  Because  the  complaint  sets  forth 
but  a  single  cause  of  action,  and  the  plain- 
tiff cannot  legally  found  a  claim  for  dam- 
ages upon  the  alleged  breach  of  any  one  of 
the  several  agreements  or  contracts  re- 
ferred to. " 

The  motion  was  granted,  and  judgment 
for  defendant  was  entered  on  the  dismiss- 
al of  the  complaint,  which,  on  appeal 
therefrom  by  plaintiff,  was  affirmed  by 
the  general  term.  Plaintiff  appealed  from 
the  judgment  of  the  general  term. 

R.  W.  Van  Pelt,  for  appellant.  William 
Allen  Butler,  for  respondent. 

Finch,  J.    We  have  been  unable  to  find 


any  accurate  and  perfect  definition  of  a 
"tort."  Between  actions  plain^'^  ex  con- 
tmctu  and  those  as  clearly  ex  delicto  there 
exists  what  has  been  termed  a  "border- 
land,"  where  the  lines  of  distinction  are 
shadowy  and  obscure,  and  the  tort  and 
the  conti-act  so  approach  each  other,  and 
become  so  nearly  coincident,  as  to  make 
their  practical  separation  somewhat  diffi- 
cult. Moak'sUnderh.  Torts,  23.  The  text- 
writers  either  avoid  a  definition  entii-ely, 
(Addison  on  Torts;)  or  frame  one  plainly 
imperfect,  (2  Bouv.  Law  Diet.  600;)  or  de- 
pend upon  one  which  they  concede  to  be 
inaccurate,  but  hold  sufficient  for  judicial 
purposes,  (Cooley,  Torts,  3,  note  1; 
Moak's  Underh.  Torts,  4;  1  Hil.  Torts,  1.) 
By  these  last  authors  a  tort  is  described 
in  general  as  "a  wrong  independent  of 
contract. '"  And  yet,  it  is  conceded  that  a 
tort  may  grow  out  of,  or  make  part  of, 
or  be  coincident  with,  a  contract,  (2  Bou- 
vier,  supra;)  and  that  precisely  the  same 
state  of  facts  between  the  same  parties 
may  admit  of  an  action  either  ex  contractu 
or  ex  delicto,  (Cooley,  Torts,  90.)  In  such 
cases  the  tort  is  dependent  upon,  while  at 
the  same  time  independent  of,  the  con- 
tract; for  if  the  latter  imposes  the  legal 
duty  upon  a  person,  the  neglect  of  that 
duty  may  constitute  a  tort  founded  upon 
a  contract.  1  Add.  Torts,  13.  Ordinarily, 
the  essence  of  a  tort  consists  in  the  viola- 
tion of  some  duty  due  to  an  individual, 
which  duty  is  a  thing  different  from  the 
mere  contract  obligation.  When  such 
duty  grows  out  of  relations  of  trust  and 
confidence,  as  that  of  the  agent  to  his  prin- 
cipal or  the  lawyer  to  his  client,  the 
ground  of  the  duty  is  apparent,  and  the 
tort  is,  in  general,  easily  separable  from 
the  mere  breach  of  contract.  But  where 
no  such  relation  flows  from  the  consti- 
tuted contract,  and  still  a  breach  of  its  ob- 
ligation is  made  the  essential  and  princi- 
pal means,  in  combination  with  other  and 
perhaps  innocent  acts  and  conditions,  of 
inflicting  another  and  different  injury,  and 
accomplishing  another  and  different  pur- 
pose, the  question  whether  such  invasion 
of  a  right  is  actionable  as  a  breach  of  con- 
tract only,  or  also  as  a  tort,  leads  to  a 
somewhat  difficult  search  for  a  distin- 
guishing test. 

In  the  present  case,  the  learned  counsel 
for  the  respondent  seems  to  free  himself 
from  the  difficulty  by  practically  denying 
the  existence  of  any  relation  between  the 
parties  except  that  constituted  by  the 
contract  itself,  and  then,  insisting  that  such 
relation  was  not  of  a  character  to  origi- 
I  nate  any  separate  and  distinct  legal  duty, 
I  argues  that,  therefore,  the  bare  violation 
of  the  contract  obligation  created  merely 
a  breach  of  contract,  and  not  a  tort.  He 
says  that  the  several  instruments  put  in 
evidence  showed  that  there  never  had 
been  any  relation  between  the  plaintiff 
and  the  railroad  company,  excei)t  that  of 
parties  contracting  in  reference  to  certain 
specific  subjects,  by  plain  and  distinct 
agreements,  for  any  breach  of  which  the 
parties,  respectively,  would  have  a  rem- 
edy, but  none  of  which  created  any  such 
rights  as  to  lay  the  foundation  for  a 
charge  of  willful  misconduct  or  anj'  other 
tortious  act.    Upon  this  theory,  the  case 


GENERAL  PRINCIPLES. 


59 


was  tried.  Every  offer  to  prove  the  con- 
tracts, and  especially  their  breach,  was 
resisted  upon  the  ground  that  the  com- 
plaint, through  all  its  long  history  of 
plaintiff's  grievances,  alleged  but  a  single 
cause  of  action,  and  that  for  a  tort,  and 
therefore  something  else,  above  and  be- 
yond and  outside  of  a  mere  breach  of  con- 
tract, must  be  shown,  and  proof  of  sucli 
breach  was  immaterial.  From  every  di- 
rection in  which  the  plaintiff  approached 
the  allegations  of  his  complaint,  the  same 
barrier  obstructed  his  path  and  excluded 
his  proof.  Whatever  may  be  true  of  the 
eai-iier  agreements  between  the  plaintiff 
and  the  railroad  company,  and  conceding, 
what  seems  probable,  that  the  evidence 
relating  to  them  was  properly  rejected, 
on  the  ground  that  they  left  the  defendant 
entirely  at  liberty  to  change  the  site  of  its 
depot,  so  that  such  change  was  in  no  re- 
spect either  unlawful  or  wrong,  there  was 
yet  a  later  agreement  by  the  terms  of 
which  the  defendant  was  bound,  as  soon 
as  practicable  and  within  a  reasonable 
time,  to  restore  the  depot  to  its  old  loca- 
tion. The  comyjlaint  explains  the  impor- 
tance of  such  restoration  to  the  plaintiff. 
It  alleges  that  valuable  property  of  his, 
heavily  mortgaged,  had  depreciated  in 
value  in  consequence  of  the  removal  of  the 
depot,  and  could  only  be  restored  to  some- 
thing like  its  old  value,  and  saved  from 
the  sacrifice  of  a  foreclosure  in  a  time  of 
depression,  by  the  prompt  return  of  the 
deitot  to  its  former  site.  The  complaint 
further  avers  that,  to  secure  this  result, 
the  plaintiff  has  surrendered  valuable  ri- 
parian rights  to  the  defendant,  but  the 
latter,  fully  understanding  the  situation, 
maliciously  and  willfully  broke  its  agree- 
ment, and  delayed  a  restoration  of  the  de- 
pot, for  the  express  purpose  of  preventing 
plaintiff  from  being  enabled  to  ward  off  a 
foreclosure  of  the  mortgage,  and  itself  in- 
stigated sucli  foreclosure,  and  caused  the 
ultimate  sacrifice.  For  the  breacn  of  this 
contract  to  restore  the  depot  within  a 
reasonable  time  the  plaintiff  had  a  cause 
of  action.  But  that  was  not  the  one  with 
which  he  came  into  court.  His  complaint 
was  for  a  single  cause  of  action,  and  that 
for  a  tort ;  and  what  that  alleged  tort 
was  it  is  quite  necessary  to  know,  and  in 
what  respect  and  how  it  differs  from  a 
mere  breach  of  contract,  in  order  to  de- 
termine whether  the  rejected  proofs  were 
admissible  or  not. 

That  a  good  cause  of  action,  sounding 
in  tort,  was  stated  in  the  complaint  was 
not  denied  upon  the  trial.  Neither  by  de- 
murrer nor  by  motion  was  the  sufficiency 
of  the  complaint  in  any  manner  assailed. 
The  second  ground  upon  which  a  nonsuit 
was  asked  practically  confessed  that  there 
was  a  good  cause  of  action,  but  merely 
a  failure  to  prove  it.  The  ground 
stated  was  "  because  the  gist  of  this  ac- 
tion is  the  malicious  and  unlawful  acts  of 
the  defendant  in  pursuing  a  scheme  or 
plan  to  injure  the  plaintiff  by  depriving 
him  of  his  property,  based  upon  an  al- 
leged malicious  violation  of  certain  al- 
leged contracts,  but  the  proof  offered  fails 
to  make  out  any  cause  of  action  as  set 
forth  in  the  complaint. "  The  opinion  of 
the  general  term  distinctly  concedes   the 


point,  saying  that  the  facts  alleged  made 
out  "a  clear  case  of  fraud."  And  on  the 
present  appeal  the  learned  counsel  for  the 
respondent  explicitly  admits,  in  his  brief, 
that  it  was  competent  for  the  plaintiff, 
under  the  issue  of  fact  joined  b3'  the  plead- 
ings, to  give  evidence  of  any  of  the  alleged 
wrongful  acts  charged  in  the  complaint, 
as  a  basis  for  the  claim  of  damages  which 
he  asserted.  There  was  therefore  some- 
thing to  try,— something  which  was  sus- 
ceptible of  proof ;  a  tortious  act  or  omis- 
sion, or  a  series  of  such  acts  oromissions, 
properly  alleged  in  the  complaint,  and 
open  to  the  plaintiff's  evidence.  Why  he 
was  not  ])ermitted  to  have  a  single  one  of 
the  40  (juestions  put  to  his  witnesses  an- 
swered becomes,  now,  the  important  in- 
quiry. It  will  not  be  necessary  to  con- 
sider them  all,  for  many  wei-e  excluded  for 
a  defect  in  tiieir  form,  or  because  totally 
immaterial,  or  in  the  exercise  of  the  proper 
discretion  as  to  the  order  of  proof,  but 
enough  remain,  and  may  bo  grouped  to- 
gether, to  raise  the  serious  question  ar- 
gued at  the  bar. 

The  plaintiff  offered  to  show  the  agree- 
ment of  March,  1877,  bptween  himself  and 
the  railroad  company,  for  the  restoration 
of  the  depot  to  its  original  site  within  a 
reasonable  time,  and  the  breach  of  that 
agreement  by  the  defendant  company. 
'J'he  objection,  put  upon  the  around  that 
the  offered  proof  was  irrelevant  and  in- 
comi)etent,  was  sustained,  and  the  evi- 
dence excluded.  The  plaintiff  then  sought 
to  show  how  long  a  time  elapsed,  after 
the  execution  of  the  contract,  before  the 
depot  was  re-established  at  the  foot  of 
Main  street;  whether  an  interval  did  oc- 
cur, and  how  much  time  elapsed  from  the 
date  of  the  contract  to  the  building  of  the 
new  depot, — which  evidence  was  also  ex- 
cluded as  immaterial.  A  series  of  ques- 
tions were  further  put,  to  show  what  the 
defendant  did,  if  anything,  in  and  about 
procui'ing  plaintiff's  mortgaged  property 
to  be  sold  and  sacrificed  under  the  mort- 
gage; when  the  foreclosure  took  i)lace  ;  at 
whose  instigation;  and  at  what  price, 
compared  with  its  real  value,  theproiJtrty 
was  sold.  Thesequestions  were  excluded. 
The  plaintiff  also  attempted  to  show  that 
there-establishment  of  tiie  deiDot  at  the 
fcjot  of  Main  street  would  have  largely  in- 
creased the  value  of  his  adjoining  proper- 
ty covered  by  the  mortgage.  That  evi- 
dence was  rejected.  The  plaintiff  was 
then  asked  if  he  had  an  interview  with  the 
officers  of  the  defendant  in  reference  to  the 
removal  and  the  re-establishment  of  the 
depot.  This  question  was  objected  to. 
and  the  only  ground  assigned  was,  "as  it 
is  in  writing."  No  proof  of  that  was  giv- 
en. The  case  shows  nothing  but  the  as- 
sertion of  the  party  objecting,  and  there- 
upon the  witness  was  not  permitted  to 
answer  the  inquiry  whether  he  had  an  in- 
terview at  all.  He  was  then  asked  what 
reasons  they  assigned  for  removing  the 
depot,  and  refusing  to  bring  it  back,  and 
this  w  as  excluded.  And  in  the  end  the 
plaintiff  was  nonsuited  because  he  had 
given  no  proof  of  a  tort  or  a  fraud.  He 
now  insists  that  he  was  first  debarred 
from  giving  such  proof,  and  then  nonsuit- 
ed because  he  had  not  given  it. 


60 


LAW  OF  TORTS. 


The  exclusion  of  proof  of  the  contract 
for  re-establishing  the  depot,  and  the  will- 
ful and  intended  breach  of  that  contract, 
bring;  lip  for  our  consideration  the  ques- 
tion principally  argued.  Such  exclusion 
must  rest  for  its  justification  upon  the 
theory  of  the  defendant's  counsel,  alreadj' 
adverted  to,  which  we  are  troul>led  to 
reconcile  with  his  concession  that  a  cause 
of  action  was  alleged  in  the  complaint. 
At  the  foundation  of  every  tort  must  lie 
some  violation  of  a  legal  duty,  and  there- 
fore some  unlawful  actor  omission.  Cool- 
ey.  Torts,  GO.  AVhatever,  or  how  numer- 
ous or  formidable,  may  be  the  allegations 
of  conspiracy,  of  malice,  of  oppression,  of 
vindictive  purpose,  they  are  of  no  avail. 
They  merely  heap  up  epithets,  unless  the 
purpose  intended  or  the  means  by  which 
it  was  to  be  accomplished  are  shown  to  be 
unlawful.  O'Callaghan  v.  Cronan,  121 
Mass.  114;  Mahan  v.  Brown,  13  Wend.  261. 
The  one  separate  and  distinct  unlawful 
act  or  omission  alleged  in  this  complaint, 
or  rather  the  only  one  so  separable  which 
we  can  see  may  have  been  unlawful,  was 
the  unreasonable  delay  in  restoring  the 
depot  to  its  original  location;  and  that 
was  unlawful,  not  inherently  or  in  itself, 
but  solel3' by  force  of  the  contract  with 
plaintiff.  The  instigation  of  the  sale  on 
foreclosure,  as  a  separate  fact,  may  have 
been  unkind,  or  even  malicious,  but  can- 
not be  said  to  have  been  unlawful.  Tbe 
mortgagee  had  a  perfect  right  to  sell,  ju- 
dicially established,  and  what  it  might 
lawfully  do  it  was  not  unlawful  to  ask  it 
to  do.  The  act  of  instigating  the  sale 
maj'  be  material,  and  have  f(jrce,  as  one 
link  in  a  chain  of  events,  and  as  serving  to 
explain  and  characterize  an  unlawful  pur- 
pose, pursued  by  unlawful  means;  but,  in 
and  of  itself,  it  was  not  an  unlawful  act, 
and  cannot  serve  as  the  foundation  of  a 
tort.  Randall  v.  Hazelton,  12  Allen,  412. 
We  are  forced  back,  therefore,  to  the  con- 
tract for  re-establishing  the  depot,  and  its 
breach,  as  the  basis  or  foundation  of  the 
tort  pleaded.  If  that  will  not  serve  the 
purpose  in  some  manner,  by  some  connec- 
tion with  other  acts  and  conditions,  then 
there  was  no  cause  of  action  for  a  tort 
stated  in  the  complaint.  We  are  thu.s 
obliged  to  study  the  doctrine  advanced  by 
the  respondent,  and  measure  its  range  and 
extent.  It  rests  upon  the  idea  that,  un- 
less the  contract  creates  a  relation,  out  of 
which  relation  springs  a  duty,  independent 
of  the  mere  contract  obligation,  though 
there  may  be  a  breach  of  the  contract, 
there  is  no  tort,  since  there  is  no  dutj^  to 
be  violated.  And  the  illustration  given  is 
the  common  case  of  acontractof  affreight- 
ment, where,  beyond  the  contract  obliga- 
tion to  transport  and  deliver  safely,  there 
is  a  duty,  born  of  the  relation  established, 
to  do  the  same  thing.  In  such  a  case,  and 
in  the  kindred  cases  of  principal  and 
agent,  of  lawyer  and  client,  of  consignor 
and  factor,  the  contractestablishes  a  legal 
relation  of  trust  and  confidence;  so  that, 
upon  a  breach  of  the  contract,  there  is  not 
merely  a  broken  promise,  but,  outside 
of  and  beyond  that,  there  is  trust  be- 
trayed and  confidence  abused.  There  is 
constructive  fraud,  or  a  negligence  that 
operates  as  such ;  and  it  is  that  fraud  and 


that  negligence  which,  at  bottom,  make 
the  breach  of  contract  actionable  as  a 
tort.  Coggs  V.  Bernard,  2  Ld.  Raym.  909; 
Orange  Bank  v.  Brown,  3  Wend.  161,  162. 

So  far  we  see  no  reason  to  disagree  with 
the  learned  counsel  for  the  respondent 
save  in  one  respect,  but  that  is  a  very  im- 
portant one.  Ending  the  argument  at 
this  point  leaves  the  problem  of  th(^  case 
still  unsolved.  If  a  cause  of  action  for  a 
t(jrt,  as  admitted,  was  stated  in  the  com- 
plaint, it  helps  us  but  little  to  learn  what 
it  was  not,  and  that  it  does  not  fall  with- 
in a  certain  class  of  exceptional  cases,  and 
cannot  be  explained  by  them.  We  have 
yet  to  understand  what  it  is,  if  it  exists 
at  all.  as  a  necessary  preliminary  to  any 
just  appreciation  of  the  relevancy  or  ma- 
teriality of  the  rejected  evidence.  The  gen- 
eral term,  as  we  have  remarked,  described 
the  tort  i)leadedas  a  "clear  case  of  fraud.  " 
If  that  be  true,  it  cannot  depend  upon  a 
fiduciary  or  other  character  of  the  relation 
constituted  by  the  contract  merely,  for  no 
such  relations  existed;  and  there  must  be 
some  other  relation  not  created  by  the 
contract  alone,  from  which  sprang  the 
duty  which  was  violated.     Let  us  analyze 

!  the  tort  alleged  somewhat  more  closely. 

i  At  the  date  of  the  contract,  the  com- 
plaint shows  the  relative  situation  and 
needs  of  the  two  parties.  The  railroad 
company  desired  to  close  the  draw  over 
the  Nepperhan  river,  and  substituted  a 
solid  bridge.  AVith  the  growth  of  its  busi- 
ness and  the  multitudes  of  its  trains  the 
draw  had  become  a  very  great  evil  and 
a  serious  danger.  The  effort  to  dispense 
with  it  was  in  itself  natural  and  entirely 
proper.  On  the  other  hand,  the  plaintiff 
was  both  a  riparian  owner  above  the  draw, 
and  likely  to  be  injured  in  that  ownership 
by  a  permanent  bridge,  and  had  suffei'ed, 
and  was  still  suffering,  from  a  severe  de- 
preciation in  the  value  of  his  property 
near  Main  street  by  the  previous  removal 
of  the  railroad  station.  The  defendant 
was  so  far  master  of  the  situation  that  it 
could  and  did  shut  off  the  plaintiff  to  a 
choice  of  evils.  He  might  insist  upon  the 
draw,  and  leave  his  mortgaged  property 
to  be  lost  from  depreciation,  and  save  his 
riparian  rights,  or  he  might  surrender  tbe 
latter  to  save  the  former.  This  last  was 
the  alternative  which  he  selected,  and  the 
contract  of  1877  was  the  result.  In  the 
making  of  this  contract  there  was  no  de- 
ceit or  fraud,  and  no  legal  or  actionable 
wrong,  on  the  part  of  the  defendant.  If 
it  drove  a  hard  bargain,  and  had  the  ad- 
vantage in  the  negotiation,  it  at  least  in- 
vaded no  legal  right  of  the  plaintiff,  and 
he  was  free  to  contract  or  not,  as  he 
pleased.  The  complaint  does  not  allege 
that  at  the  execution  of  this  agreement 
there  was  any  purpose  or  intention  of  not 
fulfilling  its  terms.  The  tort,  if  any,  orig- 
inated later.  AVhat  remains  then  is  this: 
the  railroad  company  conceived  the  idea 
of  closing  Main  street  to  any  travel  where 
it  passed  their  tracks  at  grade;  of  substi- 
tuting a  bridge  crossing  in  its  stead  ;  and 
of  fencing  in  its  track  along  the  street 
beneath,  so  as  to  compel  access  to  the 
cars  through  its  depot  in  such  manner 
that  the  purchase  of  tickets  could  be  com- 
pelled.   This,  in  itself,  was  a  perfectly  law- 


GENERAL  PEINCIPLES. 


61 


ful  purpose.  The  grade  crossing  was  a 
death  trap,  and  the  interest  of  the  com- 
pany and  the  safety  of  individuals  alike 
made  a  change  desirable,  and  the  closing 
in  of  the  depot  was  in  no  sense  reprehensi- 
ble. But  there  was  a  difficulty  in  the 
way.  The  plaintiff  Mgain  stood  as  an  ob- 
stacle in  the  jjath.  The  closing  of  Main 
street,  though  beneficial  to  the  conipanj', 
was  to  him  and  his  adjoining  property 
claimed  to  be  a  very  serious  injury.  He 
declined  to  consent,  except  upon  the  condi- 
tion of  an  award  of  heavy  damages,  and 
in  dread  of  that  peril  the  common  council 
refused  to  pass  the  necessary  ordinance. 
At  this  point,  according  to  the  allegations 
of  the  complaint,  if  at  all  or  ever,  arose 
the  tort.  It  is  alleged  that  the  defendant, 
in  order  to  reach  a  lawful  result,  planned 
a  fraudulent  scheme  for  its  accomplish- 
ment by  unlawful  means,  and  thi-oug!;  an 
injury  to  the  plaintiff,  which  would  strip 
him  of  his  damaaes  by  a  complete  sacri- 
fice of  his  property.  That  plan  was  exe- 
cuted in  this  manner:  The  company  will- 
fully and  purposely  refused  to  perform  its 
contract.  It  had  built  its  permanent 
bridge  over  the  NeppcThan,  and  S(j  re- 
ceived the  full  considerations  of  its  prom- 
ise; its  new  depot  was  substantially  fin- 
ished and  ready  for  occupation;  and  no 
just  reason  remained  why  its  contract 
should  not  be  fulfilled.  But  the  company 
refused.  It  did  not  merely  neglect  or  de- 
laj' ;  it  openly  and  publicly-  refused.  The 
purpose  of  that  public  refusal  was  appar- 
ent. It  was  to  drive  the  plaintiff's  mort- 
gagee to  a  foreclosure;  it  was  to  shut  out 
from  x^laintiff  that  appreciation  of  his 
property  which  would  enable  him  to  save 
it;  it  was  to  strip  him  of  it,  so  as  to  ex- 
tinguish the  threatened  damages,  and 
thus  procure  the  assent  of  the  common 
council,  and  get  Main  street  closed.  This 
unlawful  refusal  to  perform  the  contract, 
this  deliberate  announcement  of  the  pur- 
pose not  to  restore  the  depot,  was  well 
calculated  to  influence  the  mortgagee  to- 
wards a  foreclosure.  But  the  defendant's 
direct  instigation  was  added.  The  fore- 
closure came;  the  mortgagee  bid  in  the 
property  at  a  sacrifice;  swiftly  followed 
a  release  of  damages,  an  ordinance  of 
the  common  council,  tlie  closing  of  Main 
street,  and  then  the  restoration  of  the  de- 
pot. 

We  are  thus  able  to  see  what  the  tort 
pleaded  was.  It  was  not  a  constructive 
fraud,  drawn  from  a  violation  of  a  duty 
imposed  by  law  out  of  some  specific  rela- 
tion of  trust  and  confidence, but  an  actual 
and  affirmative  fraud, — an  alleged  scheme 
to  accomplish  a  lawful  purpose  bj'  unlaw- 
ful means.  There  was  here,  on  the  theory 
of  the  complaint,  someDiing  more  than  a 
mere  breach  of  contract.  That  breach 
was  not  the  tort;  it  was  only  one  of  the 
elements  which  constituted  it.  Beyond 
that,  and  outside  of  that,  there  was  said 
to  have  existed  a  fraudulent  scheme  and 
device  by  means  of  that  breach  to  procure 
the  foreclosure  of  the  mortgage  at  a  par- 
ticular time  and  under  such  circumstances 
as  would  make  that  foreclosure  ruinous 
to  the  plaintiff's  rights,  and  remove  him 
as  an  obstacle  by  causing  him  to  lose  his 
property,   and   thereby   his   means   of  re- 


sistance to  the  purpose  ultimately  sought. 
In  other  words,  the  necessary  theory  of 
the  complaint  is  that  a  breach  of  contract 
may  be  so  intended  and  planned;  so  pur- 
posely fitted  to  time  and  circumstances 
and  conditions;  so  interwoven  into  a 
scheme  of  oppression  and  fraud;  so  made 
to  set  in  motion  innocent  causes  which 
otherwise  would  not  operate, — as  to  cease 
to  be  a  mere  breach  of  contract,  and  be- 
come, in  its  association  with  the  attend- 
ant circumstances,  a  tortious  and  wrong- 
ful act  or  omission. 

It  may  be  granted  that  an  omission  to 
perform  a  contract  obligation  is  never  a 
tort,  unless  that  omission  is  also  an 
omission  of  a  legal  duty.  But  such  legal 
duty  may  arise,  not  merely  out  of  (^M-tain 
relations  of  trust  and  confidence,  inherent 
in  the  nature  of  the  contract  itself,  as  in 
the  case  referred  to  in  the  rfspondent's  ar- 
gument, but  may  spring  from  extraneous 
circumstances,  not  constituting  elements 
of  the  contract  as  such,  although  connect- 
ed with  and  dependent  upon  it,  and  born 
of  that  wider  range  of  legal  duty  which 
is  due  from  every  man  to  his  fellow,  to 
respect  his  rights  of  property  and  yjerson. 
and  refrain  from  invading  them  by  force 
or  fraud.  It  has  been  well  said  that  the 
liability'  to  make  reparation  of  an  injury 
rests,  not  upon  the  consideration  of  any 
reciprocal  obligation,  but  upon  an  origi- 
nal moral  duty  enjoined  upon  every  person 
so  to  conduct  himself,  or  exercise  his  own 
rights,  as  not  to  injure  another.  Ker- 
whaker  v.  Railroad  Co.,  3  Ohio  St.  ISS. 
Whatever  its  origin,  such  legal  duty  is 
uniformly  recognized,  and  has  been  con- 
stantly applied  as  the  foundation  of  ac- 
tions for  wrongs;  and  it  rests  upon  and 
grows  out  of  the  relations  which  men 
bear  to  each  other  in  the  frame-work  of 
organized  society.  It  is  then  doubtless 
true  that  a  mere  contract  obligation  may 
establish  no  relation  out  of  which  a  sepa- 
rate or  specific  legal  duty  arises,  and  j'et 
extraneous  circumstances  and  conditions, 
in  connection  with  it.  may  establish  such 
a  relation  as  to  make  its  performance  a 
legal  duty,  and  its  omission  a  wrong  to 
be  redressed.  The  dutj-  and  the  tort 
grow  out  of  the  entire  range  of  facts,  of 
which  the  breach  of  the  contract  was  but 
one.  The  whole  doctrine  is  accurately 
and  concisely  stated  in  1  Chit.  PI.  1.3.j, 
that,  "if  a  common-law  duty  result  from 
the  facts,  the  party  may  be  sued  in  tort 
for  any  negligence  or  misfeasance  in  the 
execution  of  tlie  contract."  It  is  no  ditti- 
culty  that  the  mortgagee's  agreement  to 
give  time,  and  postpone  the  sale  for 
plaintiff's  benefit,  was  invalid,  and  a  mere 
act  of  grace  which  could  not  have  been 
compelled.  If  it  is  made  plain  that  the 
mortgagee  would  have  waited  but  for  the 
fraudulent  scheme  and  conduct  of  the  de- 
fendant, that  is  enough.  Benton  v.  Pratt, 
2  Wend.  885;  Rice  v.  Manley,  (50  N.  Y.  S3. 
Nor  is  it  a  difficulty  that  the  injury  suf- 
fered was  the  result  of  a  series  of  acts, 
some  of  which  were  lawful  and  innocem. 
Coolev,  Torts,  70;  Bebiuger  v.  Sweet,  1 
Abb.  N.  C.  263. 

Assuming,  now,  that  we  correctly  un- 
derstand what  the  tort  pleaded  was.  and 
which  was  conceded  to  constitute  a  cause 


^2 


LAW  OF  TOKTS. 


of  action,  it  seems  to  us  quite  clear  that 
the  plaintiff  was  improperly  barred  from 
proving-  it.  From  the  very  nature  of  the 
case,  a  fraud  can  s'^ldom  be  proved  direct- 
ly, and  almost  uniformly  is  an  inference 
from  the  character  of  the  whole  transac- 
tion, and  the  surrounding:  and  attendant 
circumstances.  Proof  of  the  contract, 
and  its  breach,  of  the  delay  in  restoring 
of  the  depot,  and  the  reasons  therefor, 
were  essential  links  in  the  chain.  If  the 
proof  should  go  no  further,  a  nonsuit 
would  be  proper,  but  without  these  ele- 
ments the  tort  alleged  could  not  be  estab- 
lished at  all.  And  so  the  situation  of  the 
parties  as  it  respected  their  several  prop- 
erties, the  existence  of  the  mortgage,  the 
agreement  to  postpo'ie  the  sale,  were  ele- 
ments of  the  transaction  proper  to  be 
shown.  The  plaintiff's  interview  with 
the  officers  of  the  defendant  company,  and 
their  statement  of  the  reasons  for  refusing 


to  restore  the  depot,  were  improperly  ex- 
cluded. While  we  cannot  know  what  It 
was  which  actually  occurred,  it  is  very 
plain  that  their  statement  of  reasons 
would  bear  materially  upon  the  issues  in- 
volved. We  are  not  concerned  with  the 
question  of  the  wisdom  of  the  plaintiff's 
choice  of  his  form  of  action,  or  of  what 
may  result  if  the  cause  of  action  pleaded 
as  a  tort  shall  be  hereafter  assailed,  in- 
stead of  its  sufficiency  being  conceded.  It 
may  well  be  that  he  has  chosen  the  one 
most  difficult  to  maintain,  and  that  an 
action  upon  one  or  more  of  the  contracts 
would  be  less  surrounded  by  difficulties. 
But  we  have  nothing  to  do  with  his 
choice.  He  is  entitled  to  prove  his  cause 
of  action  if  he  can.  The  judgment  should 
be  reversed,  and  a  new  trial  granted,  cost 
to  abide  the  event.  All  concur,  except 
Rapallo  and  Miller,  JJ.,  not  voting. 
Judgment  reversed. 


In  cases  of  contract,  -where  no  legal  duty  arises  independent  of  con- 
tract, one  not  in  privity  "with  the  defendant  cannot  recover 
against  him  in  tort. 


(10  Mees.  &  W.  109.) 

WiNTERBOTTOM    V.  WrIGHT. 

(Court  of  Exchequer.    June  6, 1842.) 

Contkactor's  Liability  for  Ixjury  to  Third 
Person — Privity. 
Defendant  contracted  with  the  postmaster  gen- 
eral to  provide  a  mail-coach  to  convey  the  mail 
between  two  places,  and  other  persons  contracted 
to  supply  horses  and  coachmen  for  the  same  pui'- 
pose,  and  hired  plaintiff  to  drive  the  coach. 
Plaintiff,  while  driving  the  coach,  was  injured 
by  its  breaking  down  from  latent  defects  in  its 
construction.  Held,  that  plaintiff  could  not 
maintain  an  action  against  defendant  for  such 
injury,  there  being  no  privity  of  contract  be- 
tween them. 

Demurrer  to  pleas. 

Action  on  the  case.  The  declaration 
stated  that  the  defendant  was  a  con- 
tractor for  the  supply  of  mail-coaches,  and 
had  in  that  charactsr  contracted  for  hire 
and  reward,  with  the  postmaster  general, 
to  provide  the  mail-coach  for  the  purpose 
of  convej'ing  the  mail-bags  from  Hart- 
ford, in  the  county  of  Chester,  to  Holy- 
head;  that  the  defendant,  under  and  by 
virtue  of  the  said  contract,  had  agreed 
with  the  said  postmaster  general  that  the 
said  mail-coach  should,  during  the  said 
contract,  be  kept  in  a  fit,  proper,  safe,  and 
secure  state  and  condition  for  the  said 
purpose,  and  took  upon  himself,  to-wit, 
under  and  by  virtue  of  the  said  contract, 
the  sole  and  exclusive  duty,  charge,  care, 
and  burden  of  the  repairs,  state,  and  con- 
dition of  the  said  mail-coach ;  and  it  had 
become  and  was  the  sole  and  exclusive 
duty  of  the  defendant,  to-wit,  under  and 
by  virtue  of  his  said  contract,  to  keep  and 
maintain  the  said  mail-coach  in  a  fit, 
proper,  safe,  and  secure  state  and  condi- 
tion for  the  purpose  aforesaid ;  that 
Nathaniel  Atkinson  and  other  persons, 
liaving  notice  of  the  said  contract,  were 
under  contract  with  the  postmaster  gen- 


eral to  convey  the  said  mail-coach  from 
Hartford  to  Holyhead,  and  to  supply 
horses  and  coachmen  for  that  purpose, 
and  also  not.  on  any  pretense  whatever, 
to  use  or  employ  any  other  coach  or  car- 
riage whatever  than  such  as  should  be  so 
provided,  directed,  and  appointed  by  the 
postmaster  general;  that  the  plaintiff,  be- 
ing a  mail-coachman,  and  thereby  obtain- 
ing his  livelihood,  and  while  the  said  sev- 
eral contracts  were  in  force,  having  notice 
thereof,  and  trusting  to  and  confiding  in 
the  contract  made  between  the  defendant 
and  the  postmaster  general,  and  believing 
that  the  said  coach  was  in  a  fit,  safe,  se- 
cure, and  proper  state  and  condition  for 
the  purpose  aforesaid,  and  not  knowing 
and  having  no  means  of  knowing  to  the 
contrary  thereof,  hired  himself  to  the  said 
Nathaniel  Atkinson  and  his  co-contractors 
as  mail-coachman,  to  drive  and  take  the 
conduct  of  the  said  mail-coach,  which  but 
for  the  said  contract  of  the  defendant  he 
would  not  have  done.  The  declaration 
then  averred  that  the  defendant  so  improp- 
erly and  negligently  conducted  himself, 
and  so  utterly  disregarded  his  aforesaid 
contract,  and  so  wholly  neglected  and 
failed  to  perform  his  duty  in  this  behalf, 
that  heretofore,  to-wit,  on  the  8th  of 
August,  1840,  while  the  plaintiff,  as  such 
mail-coachman,  so  hired,  was  driving  the 
said  mail-coach  from  Hartford  to  Holy- 
head, the  same  coach  being  a  mail-coach, 
found  and  provided  by  the  defendant  un- 
der his  said  contract,  and  the  defendant 
then  acting  under  his  said  contract,  and 
having  the  means  of  knowing  and  then 
well  knowing  all  the  aforesaid  premises, 
the  said  mail-coach  being  then  in  a  frail, 
weak,  infirm,  and  dangerous  state  and 
condition,  to-wit,  by  and  through  cer- 
tain latent  defects  in  the  state  and  condi- 
tion  thereof,  and  unsafe  and  unfit  for  the 
use  and  purpose  aforesaid,  and  from  no 
other    cause,    circumstance,     matter,     or 


GENERAL  PRINCIPLES. 


63 


thing:  whatsoever,  gave  way  and  broke 
down,  wherebj'  the  plaintiff  was  thrown 
from  his  seat,  and,  in  consequence  of  in- 
juries then  received,  had  become  lamed  for 
life.  To  this  declaration  the  defendant 
pleaded  several  pleas,  to  two  of  which 
there  were  demurrers;  but,  as  the  court 
jjfave  no  opinion  as  to  their  validity,  it  is 
not  necessary  to  state  them. 

Mr.  Peacock,  in  support  of  the  demur- 
rers, argued  against  the  sufficiency  of  the 
pleas. 

Mr.  Byles,  for  the  defendant,  objected 
that  the  declaration  was  bad  in  substance. 
This  is  an  action  brought,  not  against  At- 
kinson and  his  co-contractors,  who  were 
the  employers  of  the  plaintiff,  but  against 
the  person  employed  by  the  postmaster 
general,  and  totally  unconnected  with 
them  or  with  the  plaintiff.  Now,  it  is  a 
general  rule  that,  wherever  a  wrong 
arises  merely  out  of  the  breach  of  a  con- 
tract, which  is  the  case  on  the  face  of  this 
declaration,  whether  the  form  in  which 
the  action  is  conceived  be  ex  cnntrnctn  or 
ex  delicto,  the  party  who  made  the  con- 
tract alone  can   sue.     ToUir  v.  Sherstone, 

5  Mees.  &  W.  2>S3.  If  the  rule  were  other- 
wise, and  privity  of  contract  wei-e  not 
requisite,  there  would  be  no  limit  to  such 
actions.  If  the  plaintiff  maj%  as  in  this 
case,  run  through  the  length  of  three  con- 
tracts, he  may  run  through  any  number 
or  series  of  them,  and  the  most  alarming 
consequences  would  follow  the  adoption 
of  such  a  princii)le.  For  example,  every 
one  of  the  sufferers  by  such  an  accident  as 
that  which  recently  happened  on  the  Ver- 
sailles Railway  might  have  his  action 
against  the  manufacturer  of  the  defective 
axle.  So,  if  the  chain  cable  of  an  East  In- 
diianan  were  to  break,  and  the  vessel 
went  aground,  every  person  affected, 
either  in  person  or  property,  by  the  acci- 
dent, might  have  an  action  against  the 
manufacturer,  and  perhaps  against  everj' 
seller  also  of  the  iron.  Again,  suppose  a 
gentleman's  coachman  were  injured  by 
the  breaking  down  of  his  carriage,  if  this 
action  be  maintainable,  he  might  bring 
his  action  against  the  smith  or  the  coach- 
maker,  although  he  could  not  sue  his  mas- 
ter, who  is  the  party  contracting  with 
him.  Priestley  v  Fowler,  3  Mees.  &  W.  1. 
There  is  no  precedent  to  be  found  of  such 
a  declaration,  except  one  in  8  Wentworth, 
Pleading,  397,  which  has  been  deemed  very 
questionable,     liapson    v.  Cubitt,  9   Mees. 

6  W.  710.  is  an  authority  to  show  that 
the  party  injured  by  the  negligence  of  an- 
other cannot  go  beyond  the  party  who 
did  the  injury,  unless  he  can  establish  that 
the  latter  stood  in  the  relation  of  a  serv- 
ant to  the  party  sued.  In  Witte  v. 
Hague.  2  Dowl.  &  R.  33,  where  the  plain- 
tiff  sued  for  an  injury  produced  by  the  ex- 
plosion of  a  steam-engine  boiler,  the  de- 
fendant was  personally  present  managing 
the  boiler  at  the  time  of  the  accident. 
Levy  V.  Langridge,  4  Mees.  &  W.  337,  will 
probably  be  referred  to  on  the  other  side. 
But  that  case  was  expressly  decided  on 
the  ground  that  the  defendant  who  sold 
the  gun  by  which  the  plaintiff  was  injured, 
although  he  did  not  personally  contract 
with  the  plaintiff,  who  was  a  minor,  knew 
that  it  was  bought  to  be   used   by  him. 


the    principle    of 
V.    Langridge,     4 


Here  there  is  no  allegation  that  the  de- 
fendant knew  that  the  coach  was  to  be 
driven  by  the  plaintiff.  There,  moreover, 
fraud  was  alleged  in  the  declaration,  and 
found  by  the  jury,  and  there,  too,  the 
cause  of  injury  was  a  weapon  of  a  danger- 
ous nature,  and  the  defendant  was  alleged 
to  have  had  notice  of  the  defect  in  its  con- 
struction. Nothing  of  that  sort  appears 
upon  this  declaration. 

Mr.  Peacock,  contra. 

This  case  is  within 
the  decision  in  Lew 
Mees.  &  W.  337.  Here  the  defendant 
entered  into  a  contract  with  a  public  of- 
ficer to  supply  an  article  which,  if  imper- 
fectly constructed,  was  necessarily  dan- 
gerous, and  which,  from  its  nature  and 
the  use  for  which  it  was  destined,  was 
necessarily  to  be  driven  by  a  coachman. 
That  is  sufficient  to  bring  the  case  within 
the  rule  established  by  Levy  v.  Langridge. 
In  that  case  the  contract  made  by  the  fa- 
ther of  the  plaintiff  with  the  defendant 
was  made  on  behalf  of  himself  and  his 
family  generally,  and  there  was  nothing 
to  show  that  the  defendant  was  aware 
even  of  the  existence  of  the  particular  son 
who  was  injured.  Suppose  a  party  made 
a  contract  with  government  for  a  supjily 
of  muskets,  one  of  which,  from  its  miscon- 
struction, burst  and  injured  a  soldier. 
j  There  it  isclearthat  the  use  of  the  weapon 
by  a  soldier  would  have  been  contemjHat- 
!ed,  although  not  by  the  particular  indi- 
vidual who  received  the  injury  ;  and  could 
it  be  said,  since  the  decision  in  Levy  v. 
Langridge,  that  he  could  not  maintain  an 
action  against  the  contractor?  So,  if  a 
coach-maker,  employed  to  put  on  the 
wheels  of  a  carriage,  did  it  so  negligently 
that  one  of  them  flew  off.  and  a  child  of 
the  owner  were  thereby  injured,  the  dam- 
age being  the  natural  and  immediate  con- 
sequence of  his  negligence,  he  would  sure- 
!  ly  be  responsible.  So,  if  a  party  entered 
into  a  contract  to  repair  a  church,  a 
work-house,  or  other  public  building,  and 
did  it  so  insufficiently  that  a  person  at- 
tending the  former,  or  a  pauper  in  the  lat- 
ter, was  injured  by  the  falling  of  a  stone, 
he  could  not  maintain  action  against  any 
other  person  than  the  contractor,  but 
against  him  he  must  surely  have  a  rem- 
edy. It  is  like  the  case  of  a  contractor 
who  negligently  leaves  open  a  sewer, 
wherebj-a  person  passing  along  the  street 
is  injured.  It  is  clear  that  no  action  could 
bemaintained  against  thepostmastergen- 
eral.  Hall  v.  Smith,2Bing.  15(5;  Humphreys 
v.  Mears.l  Man.  &R.  187;  Priestley  v.  Fow- 
ler, 3  Mees.  &  W.  1.  But  here  the  decla- 
ration alleges  the  accident  to  have  hap- 
pened through  the  defendant's  negligence 
and  want  of  care.  The  plaintiff  had  no 
opportunity  of  seeing  that  the  carriage 
was  sound  and  secure.  [Ai-dersox,  B.: 
The  decision  in  Levy  v.  Langridge  pro- 
ceeds upon  the  ground  of  the  knowledge 
and  fraud  of  the  defendant.]  Here  also 
there  was  fraud  :  the  defendant  represent- 
ed the  coach  to  be  in  a  proper  state  for 
use,  and  whether  he  represented  that  which 
is  false  within  his  knowledge,  or  a  fact 
as  true  which  he  did  not  know  to  be  so.  it 
was  equally  a  fraud  in  point  of  law,  for 
which  he  is  responsible. 


64 


LAW  OF  TORTS. 


Abixger,  C.  B.  I  am  clearly  of  opinion 
thiit  tbe  defenflant  is  entitled  to  our  judg- 
ment. We  ouf^Iit  not  to  permit  a  doubt 
to  rest  upon  this  subject,  for  our  doing  so 
might  be  the  moans  of  letting  in  ui)on  us 
an  infinity  of  actions.  This  is  an  action 
of  the  first  impression,  and  it  has  been 
brought  in  spite  of  the  precautions  which 
were  taken  in  the  judgment  of  this  court 
in  the  case  of  Levy  v.  Langridge,  4  Mees. 
&  W.  337,  to  obviate  any  notion  that  such 
an  action  could  be  maintained.  We  ought 
not  to  attempt  to  extend  the  principle  of 
that  decision,  which,  although  it  has  been 
cited  in  support  of  this  action,  whollj' 
fails  as  an  authority  in  its  favor;  for  there 
the  gun  was  bought  for  the  use  of  the  son, 
the  i)laintiff  in  that  action,  who  could  not 
make  tlie  bargain  himself,  but  was  really 
and  substantiallj'  the  party  contracting. 
Here  the  action  is  brought  simply  because 
the  defendant  was  a  contractor  with  a 
third  person,  and  it  is  contended  that 
thereupon  he  became  liable  to  everj- body 
wlio  might  use  the  carriage.  If  there  had 
been  anj'  ground  for  such  action,  there 
certainly  would  have  been  some  precedent 
of  it;  but,  with  the  exception  of  actions 
against  innkeepers  and  some  few  other 
persons,  no  case  of  a  similar  nature  has 
occurred  in  practice.  That  is  a  strong 
circumstance,  and  is  of  itself  a  great  au- 
thority against  its  maintenance.  It  is, 
hcjwever,  contended  that,  this  contract 
being  made  on  the  behalf  of  the  public  by 
the  postmaster  general,  no  action  could 
be  maintained  against  him,  and  therefore 
the  plaintiff  must  have  a  remedy  against 
the  defendant.  But  that  is  by  no  means 
a  necessary  consequence, — he  may  be  rem- 
ediless altogether.  There  is  no  privity  of 
contract  between  these  parties;  and  if  the 
plaintiff  can  sue,  every  passenger,  even 
any  person  passing  along  the  road,  who 
was  injured  by  the  ufjsetting  of  the  coach, 
might  bring  a  similar  action.  Unless  we 
confine  the  operation  of  such  contracts  as 
this  to  the  parties  who  entered  into  them, 
the  most  absurd  and  outrageous  conse- 
quences, to  which  I  can  see  no  limit,  would 
ensue.  AVhere  a  party  becomes  responsi- 
ble to  the  public,  by  undertaking  a  public 
duty,  he  is  liable,  though  the  injury  may 
have  arisen  from  the  negligence  of  his 
servant  or  agent.  So,  in  cases  of  public 
nuisances,  whether  the  act  was  done  by 
the  party  as  a  servant,  or  in  any  other  ca- 
pacity, you  are  liable  to  an  action  at  the 
suit  of  any  person  who  suffers.  These, 
however,  are  cases  where  the  real  ground 
of  the  liability  is  the  public  duty,  or  the 
commission  of  the  public  nuisance.  There 
is  also  a  class  of  cases  in  which  the  law 
permits  a  contract  to  be  turned  into  a 
tort ;  but,  unless  there  has  been  some  pub- 
lic duty  undertaken,  or  public  nuisance 
committed,  they  are  all  cases  in  which  an 
action  might  have  been  maintained  upon 
the  contract.  Thus  a  carrier  may  be  sued 
either  in  assumpsit  ov  cairn',  but  there  is 
no  instance  in  which  a  party,  who  was 
not  privy  to  the  contract  entered  into 
with  him,  can  maintain  any  such  action. 
The  plaintiff  in  this  case  could  not  have 
brought  an  action  on  the  contract.  If  he 
could  have  done  so,  what  would  have 
been  his  situation,  supposing    the  post- 


master general  had  released  the  defend- 
ant?  That  would,  at  all  events,  have  de- 
feated his  claim  altogether.  By  permit- 
ting this  action,  we  should  be  working 
this  injustice:  that  after  the  defendant 
had  done  everything  to  the  satisfaction  of 
his  emplo3'er,  and  after  all  mattei's  be- 
tween them  had  been  adjusted,  and  all  ac- 
counts settled  on  the  footing  of  their  con- 
tract, we  should  subject  them  to  be 
ripped  open  by  this  action  of  tort  being 
brought  against  him. 

Aldersox,  B.  I  am  of  the  same  opinion. 
The  contract  in  this  case  was  made  with 
the  postmaster  general  alone;  and  the 
cqse  is  just  the  same  as  if  he  had  come  to 
the  defendant,  and  ordered  a  carriage, 
and  handed  it  at  once  over  to  Atkinson. 
If  we  were  to  hold  that  the  plaintiff  could 
sue  in  such  a  case,  there  is  no  point  at 
which  such  actions  would  stop.  The  only 
safe  rule  is  to  confine  the  rig  lit  to  recover 
to  those  who  enter  into  the  contract;  if 
we  go  one  step  beyond  that,  there  is  no 
reason  why  we  should  not  go  fifty.  The 
only  real  argument  in  favor  of  the  action 
is  that  this  is  a  case  of  hardship  ;  but  that 
might  have  been  obviated,  if  the  plaintiff 
had  made  himself  a  party  to  the  contract. 
Then  it  is  urged  that  it  falls  within  th& 
principle  of  the  case  of  Levy  v.  Langridge. 
But  the  principle  of  that  case  was  simply 
this:  that,  the  father  having  bought  th& 
gun  for  the  very  purpose  of  being  used  by 
the  plaintiff,  the  defendant  made  repre- 
sentations by  which  he  was  induced  to 
use  it.  There  a  distinct  fraud  was  com- 
mitted on  tlie  plaintiff.  The  falsehood  of 
the  representation  was  also  alleged  to 
have  been  within  the  knowledge  of  the  de- 
fendant who  made  it,  and  he  was  proper- 
ly held  liable  for  the  consequences.  How 
are  the  facts  of  that  case  applicable  to 
those  of  the  present?  Where  is  the  allega- 
tion of  misrepresentation  or  fraud  in  this 
declaration?  It  shows  nothing  of  the 
kind.  Our  judgment  must  therefore  be  for 
the  defendanr. 

GuRNEY,  B.,  concurred. 

RoLFE,  B.  The  breach  of  the  defend- 
ant's duty,  stated  in  this  declaration,  is 
his  omission  to  keep  the  carriage  in  a  safe 
condition;  and,  when  we  examine  the 
mode  in  which  that  duty  is  alleged  to  have 
arisen,  we  find  a  statement  that  the  de- 
fendant took  upon  himself,  to-wit,  under 
and  by  virtue  of  the  said  contract,  the 
sole  and  exclusive  duty,  charge,  care,  and 
burden  of  the  repairs,  state,  and  condition 
of  the  said  mail-coach,  and  during  all  the 
time  aforesaid  it  had  become  and  was  the 
sole  and  exclusive  dutj'  of  the  defendant, 
to-wit,  under  and  by  virtue  of  his  said  con- 
tract, to  keep  and  maintain  the  said  mail- 
coach  in  a  fit,  proper,  safe,  and  secure 
state  and  condition.  The  duty,  therefore, 
is  shown  to  have  arisen  solely  from  the 
contract;  and  the  fallacj' consists  in  the 
use  of  that  word  "duty."  If  a  duty  to 
the  postmaster  general  be  meant,  that  is 
true;  but  if  a  duty  to  the  plaintiff  be  in- 
tended, (and  in  that  sense  the  word  is  evi- 
dently used,)  there  was  none.  This  is  one 
of  those  unfortunate  cases  in  which  there 


GENERAL  PRINCIPLES. 


65 


certainlj'  has  been  (b.mni] in,  hut  it  is  ilnin- 1  ought  not  to  be  influenced.     Hard  cases  , 
mini   absque  injiirin.     It   is,   no   doubt,  a   it   has   been   frequently  observed,  are   ant 
hardship  upon  the   plaintiff  to  be  without    to  introduce  bad  law. 
a  remedy,  but  by    that  consideration  we  I     J udjjment  for  the  defendant 

(See,  also,  Losee  v.  Clute,  51  N.  Y.  494;  Longmeid  v.  Holliday,  6  Exch.  767,  Carter  v.  Harden,  18 
Me.  52S,  7  All.  Kep.  392.) 


But  if,  in  cases  of  contract,  the  law  imposes  a  duty  towards  third 
persons  who  are  not  parties  to  the  contract,  such  persons  may- 
recover  in  an  action  of  tort. 


(6  N.  Y.  397. ) 

Thomas  et  ah  v.  Winchestku. 

{CouH  of  Appeals  of  New  York.    July,  1S52.) 

BkE.VCH    of     Cl)NTRACT    INVOLVING    VIOLATION     OF 

Legal  Dlty  to  Thiku  Persons — Privity. 
Defendant,  a  manufacturer  of  and  dealer  in 
vegrelable  extracts  tor  medicinal  purposes,  la- 
beled and  sold,  as  extract  of  dandelion,  which  is 
a  harmless  medicine,  extract  of  belladonna,  a 
poison,  resembling  in  appearance  the  extract  of 
dandelion ;  and,  after  it  had  passed  through  the 
hands  of  other  dealers,  a  portion  of  it  was  sold 
and  administered,  as  extract  of  dandelion,  to  a 
patient,  who  was  seriously  injured  thereby.  JEeld, 
that  defendant  was  liable  in  damages  to  the  per- 
son so  injured,  although  there  was  no  privity  be- 
tween them,  on  the  gi'ound  of  a  breach  of  the  duty 
arising  out  of  the  nature  of  defendant's  business 
and  the  danger  to  others  incident  to  its  misman- 
agement. 

Appeal  from  supreme  court,  general 
term,  sixth  district. 

Action  by  Samuel  Thomas  and  Mary 
Ann  Thomas,  his  wife,  against  the  defend- 
ants, Winchester  and  Gilbert,  for  injuries 
to  the  plaintiff  Mrs.  Tliomas,  alleged  to 
have  been  caused  hy  the  negligence  of  de- 
fendants. At  the  trial  a  verdict  was  ren- 
dered for  plaintiffs  against  the  defendant 
Winchester  only,  the  defendant  Gilbert 
having  been  acquitted  hy  direction  of  the 
judge.  A  motion  by  defendant  Winchester 
for  a  new  trial  was  denied,  and  judgment 
for  plaintiffs  was  entered  on  the  verdict. 
Defendant  Winchester  appealed  from  the 
judgment. 

Chavlts  P.  Kirkhmd,  for  appellant.  A'. 
Hill,  Jr.,  for  respondents. 

Rlggles,C.  J.  This  is  an  action  brought 
to  recover  damages  from  the  defendant  for 
negligently  putting  up,  labeling,  and  sell- 
ing, as  and  for  the  extract  of  dandelion, 
which  is  a  simple  and  harmless  medicine, 
a  jar  of  the  extract  of  belladonna,  which 
is  a  deadly  poison;  by  means  of  which  tlie 
plaintiff  Mary  Ann  Thomas,  to  whom,  be- 
ing sick,  a  dose  of  dandelion  was  pre- 
scribed by  a  physician,  and  a  portion  of 
the  contents  of  the  jar  was  administered 
as  and  for  the  exti-act  of  dandelion,  w'as 
greatly  injured,  etc.  The  facts  proved 
■were  briefly  these:  Mrs.  Thomas  being  in 
ill  health,  her  physicians  prescribed  for  her 
a  dose  of  dandelion.  Her  husband  pur- 
chased what  was  believed  to  be  the  medi- 
cine prescribed,  at  the  store  of  Dr.  Foord, 
a  ph^'sician  and  druggist  in  Cazenovia, 
Madison  county,  where  the  plaintiffs  re- 
side. A  small  quantitj'  of  the  medicine 
thus  purchased  was  administered  to  Mrs. 
Thomas,  on  whom  it  produced  very 
CHASE — 5 


alarming  effects;  such  as  coldness  of  the 
surface  and  extremities,  feebleness  of  cir- 
culation, spasms  of  the  muscles,  giddiness 
of  the  head,  dilation  of  the  pupils  of  tlie 
eyes,  and  derangement  of  mind.  She  re- 
covered, however,  after  some  time,  from 
its  effects,  although  for  a  short  time  her 
life  was  thought  to  be  in  great  danger. 
The  medicine  administered  was  belladon- 
na, and  not  dandelion.  The  jar  from 
which  it  was  taken  was  labeled,  "%  lb. 
dandelion,  prepared  by  A.  Gilbert,  No.  108 
.John  street,  N.  Y. ;  jar,  Soz."  It  was  sold 
for  and  believed  by  Dr.  Foord  to  be  the  ex- 
tract of  dandelion  as  labeled.  Dr.  Foord 
purchased  the  article  as  the  extract  of 
dandelionfrom  James  S.  Aspinwall,  adrug- 
gist  at  New  Y'ork.  Aspinwall  bought  it 
of  the  defendant  as  extract  of  dandelion, 
believing  it  to  be  such.  The  defendant 
was  engaged  at  No.  108  John  street.  New 
York,  in  the  manufacture  and  sale  of  cer- 
tain vegetable  extracts  for  medi  inal  pur- 
poses, and  in  the  purchase  and  sale  of 
others.  The  extracts  manufactured  by 
him  were  put  up  in  jars  for  sale,  and  those 
which  he  purchased  were  put  up  by  him 
in  like  manner.  The  jars  containing  ex- 
tracts manufactured  by  himself  and  those 
containing  extracts  purchased  by  him 
from  others  were  labeled  alike.  Both 
were  labeled  like  the  jar  in  question,  "as 
prepared  by  A.Gilbert."  Gilbert  was  a 
person  employed  by  the  defendant  at  a 
salary  as  an  assistant  in  his  business. 
The  jars  were  labeled  in  Gilbert's  name, 
because  he  had  been  previously  engaged 
in  the  same  business  on  his  own  account 
at  No.  108  John  street,  and  probably  be- 
cause Gilbert's  labels  rendered  the  articles 
more  salable.  The  extract  contained  in 
the  jar  sold  to  Aspinwall,  and  by  him  to 
J'oord,  was  not  manufactured  by  the  de- 
fendant, but  was  purchased  by  him  from 
another  manufacturer  or  dealer.  The  ex- 
tract of  dandelion  and  the  extract  of  bel- 
ladonna resemble  each  other  in  color,  con- 
sistence, smell,  and  taste;  but  may,  on 
careful  examination,  be  distinguished,  the 
one  from  the  other,  by  those  who  are  well 
acquainted  with  those  article.^.  Gilbert's 
labels  were  paid  for  by  Winchester,  and 
used  in  his  business,  with  his  knowledge 
and  assent. 

The  defendant's  counsel  moved  for  a 
nonsuit  on  the  following  grounds:  (1) 
That  the  action  could  not  be  sustained, 
as  the  defendant  was  the  remote  vendor 
of  the  article  in  question;  and  there  was 
no  connection,  transaction,  or  privity  be- 
tween him  and  the  plaintiffs,  or  either  of 
them.     (2)  That   this    action    sought  to 


66 


LAW  OF  TORTS. 


»;harge  tlie  defendant  with  the  conse- 
quences of  the  negligence  of  Aspinwall  and 
Foord.  (3)  That  the  plaintiffs  were  liable 
to  and  Jhargeable  with  the  negligence  of 
Aspinwall  and  Foord,  and  therefore  could 
not  maintain  this  action.  (4)  That,  ac- 
cording to  the  testimony',  Foord  was 
chargeable  with  negligence,  and  that  the 
plaintiffs,  therefore,  could  ncjt  sustain  this 
suit  against  the  defendant ;  if  they  could 
sustain  a  suit  at  all,  it  would  be  against 
Foord  only.  (5)  That  this  suit  being 
brought  for  the  benefit  of  the  wife,  and  al- 
leging her  as  the  meritorious  cause  of  ac- 
tion, cannot  be  sustained.  (6)  That  there 
was  not  sufficient  evidence  of  negligence  in 
the  defendant  to  go  to  the  jury.  The  judge 
overruled  the  motion  for  a  nonsuit,  and 
the  defendant's  counsel  excepted. 

The  judge,  among  other  things,  charged 
the  jury  that  if  they  should  find  from  the 
evidence  that  either  Aspinwall  or  Foord 
was  guilty  of  negligence  in  vending,  as 
and  for  dandelion,  the  extract  taken  by 
Mrs.  Thomas,  or  that  the  plaintiff  Thom- 
as, or  those  who  administered  it  to  Mrs. 
Thomas,  were  chargeable  with  negligence 
in  administering  it,  the  plaintiffs  were  not 
entitled  to  recover;  but  if  they  were  free 
from  negligence,  and  if  the  defendant  Win- 
chester was  guilty'  of  negligence  in  put- 
ting up  and  vending  the  extracts  in  ques- 
tion, the  plaintiffs  were  en  titled  to  recover, 
provided  the  extract  administered  to  Mrs. 
Thomas  was  the  same  which  was  put  up 
by  the  defendant,  and  sold  by  him  to  As- 
pinwall, and  by  Aspinwall  to  Foord. 
That,  if  they  should  find  the  defendant  lia- 
ble, the  plaintiffs  in  this  action  were  enti- 
tled to  recover  damages  only  for  the  per- 
sonal injury  and  suffering  of  the  wife,  and 
not  for  loss  of  service,  medical  treatment, 
or  expense  to  the  husband,  and  that  the 
recovery  should  be  confined  to  the  actual 
damages  suffered  by  the  wife.  The  action 
was  properly  brought  in  the  name  of  the 
husband  and  wife  for  the  personal  injury 
and  suffering  of  the  wife,  and  the  case  was 
left  to  the  jury  with  the  proper  direcitions 
on  that  point.     1  Chit.  PI.  (Ed.  of  1828)  62. 

The  case  depends  on  the  first  point  tak- 
en by  the  defendant  on  his  motion  for  a 
nonsuit;  and  the  question  is  whether,  the 
defendant  being  a  remote  vendor  of  the 
medicine,  and  there  being  no  privity  or 
connection  between  him  and  the  plaintiffs, 
the  action  can  be  maintained.  If, in  label- 
ing a  poisonous  drug  with  the  name  of  a 
harmless  medicine,  for  public  market,  no 
duty  was  violated  by  the  defendant,  ex- 
cepting that  which  he  owed  to  Aspinwall, 
his  immediate  vendee,  in  virtue  of  his  con- 
tract of  sale,  this  action  cannot  be  main- 
tained. If  A.  build  a  wagon,  and  sell  it 
to  B.,  who  sells  it  to  C,  and  C.  hires  it 
to  I).,  who,  in  consequence  of  the  gross 
negligence  of  A.  in  building  the  wagon,  is 
ovei turned  and  injured,  D.  cannot  recover 
damages  against  A.,  the  builder.  A.'s  ob- 
ligation to  build  the  wagon  faithfully 
arises  solely  out  of  his  contract  with  B. 
The  public  have  nothing  to  do  with  it. 
Misfortune  to  third  persons,  not  parties 
to  the  contract,  would  not  be  a  natural 
and  necessary  consequence  of  the  builder's 
negligence;  and  such  negligence  is  not  an 
act  imminently  dangerous  to  human  life. 


So,  for  the  same  reason,  If  m  riors*:  be  de- 
fectively shod  bj^  a  smith,  and  a  person 
hiring  the  horse  from  the  owner  istlirowu 
and  injured  in  consequence  of  the  smith's 
negligence  in  shoeing,  the  smith  is  not  lia- 
ble for  the  injury.  The  smith's  duty  in 
such  case  grows  exclusively  out  of  his  con- 
tract with  the  owner  of  the  horse.  It  was 
a  duty  which  the  smith  owed  to  him 
alone,  and  to  no  one  else.  And,  although 
the  injury  to  the  rider  may  have  hap- 
pened in  consequence  of  the  negligence  of 
the  smith,  the  latter  was  not  bound,  ei- 
ther by  his  contract  or  by  any  considera- 
tions of  public  policy  or  safety,  to  re- 
spond for  his  breach  of  duty  to  any  one 
except  the  person  he  contracted  with. 
This  was  the  ground  on  which  the  case  of 
Winterbottom  v.  Wright,  10  Mees.  &  W. 
109,  wag  decided.  A.  contracted  with  the 
postmaster  general  to  provide  a  coach  to 
convey  the  mail-bags  along  a  certain  line 
of  road,  and  B.  and  others  also  contract- 
ed to  horse  the  coach  along  tlie  same  line. 
B.  and  his  co-contractors  hired  C,  who 
was  the  plaintiff,  to  drive  the  coach. 
The  coach,  in  consequence  of  some  latent 
defect,  broke  down.  The  plaintiff  was 
thrown  from  his  seat,  and  lamed.  It  was 
held  that  C.  could  not  maintain  an  action 
against  A.  for  the  injury  thus  sustained. 
The  reason  of  the  decision  is  best  stated 
by  Baron  Eolfk:  A.'s  duty  to  keep  the 
coach  in  good  condition  was  a  duty  to 
the  postmaster  general,  with  whom  he 
made  his  contract,  and  not  a  duty  to  the 
driver  employed  by  the  owners  of  the 
horses. 

But  the  case  in  hand  stands  on  a  differ- 
ent ground.  The  defendant  was  a  dealer 
in  poisonous  drugs.  Gilbert  was  his 
agent  in  preparing  them  for  market.  The 
death  or  great  bodily  harm  of  some  per- 
son was  the  natural  and  inevitable  con- 
sequence of  the  sale  of  belladonna  by 
means  of  the  false  label.  Gilbert,  the  de- 
fendant's agent,  would  have  been  punish- 
able for  manslaughter  if  Mrs.  Thomas 
had  died  in  consequence  of  taking  the  false- 
ly labeled  medicine.  Every  man  who,  bj' 
his  culpable  negligence,  causes  the  death 
of  another,  although  without  intent  to 
kill,  is  guilty  of  manslaughter.  2  Rev.  St. 
p.  6(52,  §  19.  A  chemist  who  negligently  sells 
laudanum  in  a  phial  labeled  as  paregoric, 
and  thereby  causes  the  death  of  a  person 
to  whom  it  was  administered,  is  guilty 
of  manslaughter.  Tessymond's  Case,  1 
Lewin,  Cr.  Cas.  169.  "So  highly  does  the 
law  value  human  life  that  it  admits  of 
no  justification  wherever  life  has  been 
lost,  and  the  carelessness  or  negligence  of 
one  person  has  contributed  to  thedeathof 
another."  Regina  v.  Swindall,  2  Car.  & 
K.  232,2.33.  And  this  rule  applies,  not  on- 
ly where  the  death  of  one  is  occasioned 
by  the  negligent  act  of  another,  but  where 
it  is  caused  by  the  negligent  omission  of 
a  duty  of  that  other.  Regina  v.  Haines, 
Id.  368,  .371.  Although  the  defendant,  Win- 
chester, may  not  be  answerablecriminally 
for  the  negligence  of  his  agent,  there  can 
be  no  doubt  of  his  liability  in  a  civil  ac- 
tion, in  which  the  act  of  the  agent  is  to 
be  regarded  as  the  act  of  the  principal. 

In  respect  to  the  wrongful  and  criminal 
character  of    the    negligence  complained 


GENERAL  PRINCIPLES. 


67 


of,  (he  case  differs  widely  from  tliose  put 
by  the  defendant's  counsel.  No  such  im- 
minent danger  existed  in  those  cases.  In 
the  present  case  the  sale  of  the  i)oi.sonous 
article  was  made  to  a  dealer  in  drugs,  and 
not  to  a  consumer.  The  injury,  therefore, 
was  not  likely  to  fall  on  him,  or  on  his 
vendee,  who  was  also  a  dealer;  but  much 
more  likely  to  be  visited  on  a  remote  pur- 
chaser, as  actually  happened.  The  defend- 
ant's negligence  put  human  life  in  immi- 
nent danger.  Can  it  be  said  that  there 
was  no  duty  on  the  part  of  the  defend- 
ant to  avoid  the  creation  of  that  danger 
bj'  the  exercise  of  greater  caution,  or  that 
the  exercise  of  that  caution  was  a  duty 
only  to  his  immediate  vendee,  whose  life 
was  not  endangered?  The  defendant's 
duty  arose  out  of  the  nature  of  his  busi- 
ness and  the  danger  to  others  incident  to 
its  mismanagement.  Nothing  but  mis- 
chief like  that  which  actually  happened 
could  have  beeu  expected  from  sending 
the  poison  falsely  labeled  into  the  market, 
and  the  defendant  is  justly  responsible  for 
the  probable  consequences  of  the  act.  The 
duty  of  exercising  caution  in  this  respect 
did  not  arise  out  of  the  defendant's  con- 
tract of  sale  to  Asj)inwall.  The  wrong 
done  by  the  defendant  was  in  putting  the 
poison,  mislabeled,  into  the  hands  of  As- 
pinwall,  as  an  article  of  merchandise,  to 
be  sold  and  afterwards  used  as  the  ex- 
tract of  dandelion,  by  some  person  then 
unknown.  The  owner  of  a  horse  and 
cart  who  leaves  them  unattended  in  the 
street  is  liable  for  any  damage  which  may 
result  from  his  negligence.  Lynchv.Nur- 
din,  1  Adol.  &  E.  (N.  S.)  29;  Illidge  v. 
Goodwin,  5  Car.  &  P.  190.  The  owner  of  a 
loaded  gun  who  puts  it  into  the  hands  of 
a  child,  by  whose  indiscretion  it  is  dis- 
charged, is  liable  for  the  damage  occa- 
sioned by  the  discharge.  Dixon  v.  Bell,  5 
Maule  &  S.  198. 

The  defendant's  contract  of  sale  to  As- 
pinwall  does  not  excuse  the  wrong  done  to 
the  plaintiffs.  It  was  a  part  of  the 
means  by  which  the  wrong  was  effected. 
The  plaintiffs'  injury  and  their  remedy 
would  have  stood  on  the  same  principle 
if  the  defendant  had  given  the  belladonna 
to  Dr.  Foord  without  price,  or  if  he  had 
put  it  in  his  shop  without  his  knowledge, 
under  circumstances  which  would  prob- 
ably have  led  to  its  saleon  the  faith  of  the 
label.  In  Longmeid  v.  Holliday,  6  Law 
&  Eq.  Rep.  562,  the  distinction  is  recog- 
nized between  an  act  of  negligence  immi- 
nently dangerous  to  the  lives  of  others, 
and  one  that  is  not  so.  In  the  former 
case,  the  party  guilty  of  the  negligence  is 
liable  to  the  party  injured,  whether  there 
be  a  contract  between  them  or  not;  in 
the  latter,  the  negligent  party   is  liable 

(See,  also,  Devlin  v.  Smith,  89  N.  Y.  470;  Kelly  v.  Howell,  41  Ohio  St.  438;  Heaven  v.  Pender,  11 
<3.  B.  Div.  503;  Van  Winkle  v.  Boiler  Co.,  52  N.  J.  Law,  340, 19  AtL  Rep.  472;  Langridge  v.  Levy,  2 
Meea.  &  W.  519,  4  Mees.  &  W.  337.) 


only  to  the  party  with  whom  he  contract- 
ed, and  on  the  ground  that  negligence  is  a 
breach  of  the  contract. 

The  defendant  on  the  trial  insisted  that 
Aspinwall  and  Foord  were  guilty  of  neg- 
ligence in  selling  the  article  in  question  for 
what  it  was  represen  ted  to  be  in  the  label, 
and  that  the  suit,  if  it  could  be  sustained 
at  all,  should  have  be  n  brought  against 
Foord.  The  judge  charged  the  jury  that 
if  they,  or  either  of  them,  were  guilty  of 
negligence  in  selling  the  belladonna  for 
dandelion,  the  verdict  must  be  for  the  de- 
fendant, and  left  the  question  of  their  neg- 
ligence to  the  jury,  who  found  on  that 
point  for  the  plaintiffs.  If  the  case  really 
depended  on  the  point  thus  raised,  the 
question  was  properly  left  to  the  iur.y. 
But  I  think  it  did  not.  The  defendant,  by 
afKxing  the  label  to  the  jar,  represented  its 
contents  to  be  dandelion,  and  to  have  been 
"prepared"  by  his  agent,  Gilbert.  The 
word  "prepared "on  the  label  must  be  un- 
derstood to  mean  that  the  article  was 
manufactured  by  him,  or  that  it  had 
passed  through  some  process  under  his 
hands,  which  would  give  him  personal 
knowledge  of  its  true  name  and  quality. 
Whether  Foord  was  justified  in  selling 
the  article  upon  the  faith  of  the  defend- 
ant's label  would  have  been  an  open  ques- 
tion in  an  action  bj'  the  plaintiffs  against 
him,  and  I  wish  to  be  understood  as  giv- 
ing no  opinion  on  that  point.  But  it 
seems  to  me  to  be  clear  that  the  defendant 
cannot,  in  this  case,  set  up  as  a  defense 
that  Foord  sold  the  contents  of  the  jar 
as  and  for  what  the  defendant  represented 
it  to  be.  The  label  conveyed  the  idea  dis- 
tinctly to  Foord  that  the  contents  of  the 
jar  was  the  extract  of  dandelion,  and 
that  the  defendant  knew  it  to  be  such.  So 
far  as  the  defendant  is  concerned,  Foord 
was  under  no  obligation  to  test  the  truth 
of  the  representation.  The  charge  of  the 
judge  in  submitting  to  the  jury  the  ques- 
tion in  relation  to  the  negligence  of  Foord 
and  Aspinwall  cannot  be  complained  of 
by  the  defendant. 

Gardiner,  J.,  concurred  in  affirming  the 
judgment,  on  the  ground  that  selling  the 
belladonna,  without  a  label  indicating  that 
it  was  a  poison,  was  declared  a  misde- 
meanor by  statute,  (2  Rev.  St.  p.  694,  §  25, 
[23;])  but  expressed  no  opinion  upon  the 
question  whether,  independent  of  the  stat- 
ute, the  defendant  would  have  been  liable 
to  these  plaintiffs. 

Gridley,  J.,  was  not  present  when  the 
cause  was  decided.  All  the  other  members 
of  the  court  concurred  in  the  opinion  de- 
livered by  Ruggi.es,  C.  J. 

Judgment  affirmed. 


Co 


LAW  OF  TORTS. 


In  actions  of  tort  against  joint  tort-feasors,  the  damages  will  not  he 
apportioned. 


(14  R.  I.  175.) 

Keegan  v.  Hayden  et  al. 

{Supreme  Court  of  Rhode  Island.    May  31, 1883. ) 

Joint  Trespassers— Apportioxmext  of  Damages. 
On  a  Verdict  for  plaintiff,  in  an  action  for  as- 
sault and  battery  and  false  imprisonment  against 
several  defendants,  the  damages  are  properly  as- 
sessed jointly  against  all,  without  discrimination 
between  the  defendants. 

Petition  fur  a  new  trial. 

Action  of  trespass  by  Lawrence  Keeg:an 
against  William  F.  Hayden  and  others. 
The  jury  found  a  verdict  against  all  the 
defendants.  Defendants  petitioned  for  a 
new  trial. 

yicholas  Van  Slyck  and  Stephen  A. 
Cooke,  Jr.,  City  Sols.,  for  defendants. 
Charles  E.  Gorman  and  John  Palmer,  for 
plaintiff. 

DuRFEE,  C.  J.  This  is  a  petition  for 
the  new  trial  of  an  action  of  trespass 
against  three  several  defendants  for  as- 
sault and  battery  and  false  imprison- 
ment. The  defendants  pleaded  jointly— 
First,  the  general  issue;  and,  second,  a 
special  plea  in  justification  that  they  were 
police  constables  of  the  city  of  Providence, 
and  as  such  arrestedtheplaintiff  for  intoxi- 
cation in  the  public  streets  of  said  city,  and 
detained  him  for  trial,  the  said  arrest  and 
detention  being  the  trespasses  complained 
of.  The  jury  on  trial  returned  a  verdict 
for  the  plaintiff  against  them  all  jointly  for 
$500.    One  of  the  grounds  assigned  for  new 

(See,  also,  Post  v.  StockweU,  Si  Hun,  373:   Huddleston  v.  West  Bellevue,  111  Pa.  St.  110,  2  AtL 
Rep.  200.) 


trial  is  that  the  jury  did  not  discriminate 
between  the  defendants,  but  assessed 
them  all  jointly  for  the  full  amount  of  the 
damages.  We  do  not  find  any  error  in 
this.  The  rule  is  that,  in  an  action  of 
tort  against  several  who  are  jointly 
charged,  the  verdict  ought  to  be  rendered 
against  all  who  are  proved  guilty  as 
charged,  without  any  apportionment  of 
the  damages,  each  and  all  of  them  being 
alike  liable  for  the  wrong  to  the  fullest  ex- 
tent, in  whatever  different  degrees  they 
may  have  contributed  to  it.  Hill  v.  Goou- 
child,  5  Burrows.  2790;  Hume  v.  Oldacre, 
1  Starkle,  H.nl  ;  Berry  v.  Fletclier,  1  Dill.  67, 
71;  Sprague  v.  Kneeland,  12  Wend.  161; 
Halsey  v.  Woodruff,  9  Pick.  555;  Fuller  v. 
Chamberlain,  11  Mete.  (Mass.)  503;  Cur- 
rier v.  Swan.  63  Me.  323;  Clark  v.  Bales, 
15  Ark.  452;  Hair  v.  Little.  28  Ala.  236;  Bell 
V.  Morrison,  27  Miss.  6S;  Beal  v.  Finch,  11 
N.  Y.  128.  The  defendants  also  ask  for  a 
new  trial  because  the  verdict  is  against 
the  evidence,  and  the  weight  thereof,  and 
because  the  damages  are  excessive.  The 
evidence  is  conflicting,  but  we  are  not  pn  - 
pared  to  set  the  verdict  aside  for  the  first 
of  these  two  reasons.  We  think,  however, 
that  the  damages  are  excessive,  for,  ac- 
cording to  the  evidence,  the  peace  of  tho 
street  bad  been  disturbed,  and  the  plain- 
tiff, if  not  indecently  drunk,  had  been 
drinking  enough  to  make  him  excitable 
and  abusive.  A  new  trial  will  therefore 
be  granted,  unless  the  verdict  is  reduced 
to 


In  general,  no  right  of  contribution  exists  between  joint  tort-feasors. 


(66  Pa.  St.  218.) 

Armstrong  County  v.  Clarion  County. 

{Supreme  Court  of  Pennsylvania.    Jan.  3, 1870.) 

Joint  Wroxg-Doers — Coxtributiox. 

A  person  injured  by  the  breaking  down  of  a 
public  bridge  over  a  stream  forming  the  divid- 
ing line  between  two  counties,  which  was  main- 
tained and  kept  in  repair  at  the  joint  and  equal 
expense  of  both,  recovered  damages  for  his  in- 
juries against  one  of  the  counties,  which  it  paid. 
Held,  that  said  county  could  recover  from  the 
other  county  the  latter' s  proportion  of  such  pay- 
ment. The  rule  that  there  is  no  contribution  be- 
tween joint  tort-feasors  is  confined  to  cases  where 
it  must  be  presumed  that  the  party  knew  he  was 
committing  an  unlawful  act. 

Error  to  court  of  common  pleas,  Clarion 
county. 

Action  of  assumpsit  by  Armstrong  coun- 
ty against  Clarioncounty  for  contribution 
of  a  proportion  of  a  judgment  recovered 
against  and  paid  by  the  former  county. 
At  the  trial,  on  motion  of  defendant,  the 
court  directed  a  nonsuit.  This  plaintiff 
assigned  for  error. 

Argued  before  Thompson,  C.  J.,  and 
Read,  Agnew,  Sharswood,  and  Will- 
iams, JJ. 

F.  Mechlin^.  G.  W.  Latbey,  and  D.  Bar- 


clay, for  plaintiff  in  error.     W.  L.  Corbett, 
for  defendant  in  error. 

Read,  J.  The  bridge  across  Red  Bank 
creek,  between  the  counties  of  Armstrong 
and  Clarion,  at  the  place  known  as  the 
"Rockport  Mills,"  was  a  county  bridge, 
maintained  and  kept  in  repair  at  the  joint 
and  equal  charge  of  both  counties.  While 
John  A.  Humphreys  was  crossing  the 
bridge  it  fell,  and  he  was  severelj'  injured. 
He  brought  suit  for  damages  against  the 
county  of  Armstrong,  and  on  the  trial, 
under  the  charge  of  the  court,  there  was  a 
verdict  for  defendant.  This  was  reversed^ 
on  writ  of  error,  (56  Pa.  St.  204;)  and 
upon  a  second  trial  there  was  a  verdict 
for  the  plaintiff  for  $1,100  damages,  on 
which  judgment  was  entei-ed.  This  judg- 
ment, with  interest  and  costs,  was  paid  by 
Armstrong  county,  and  the  present  suit 
is  to  I'ecover  contribution  from  Clarion 
countj".  On  the  trial  the  learned  judge 
nonsuited  the  plaintiff  on  the  ground  that 
one  of  two  joint  wrong-doers  cannot  have 
contribution  from  the  other.  The  com- 
missioners of  the  two  counties  had  exam- 
ined the  bridge  in  the  summer,  and  ordered 
some  repairs,   which   were  made.    There- 


GENERAL  PRINCIPLES. 


69 


■can  be  little  doubt   that  morally  Clarion  I  eery  seemed  to  consider  the  case  of  two 
county  was  bound  to  pay  one-half   of  the   sheriffs  of  Middlesex,  where  one  had   paid 


sum  recovered  from  and  paid  by  Arra- 
stronf>  county;  and  rhe  (juestion  is,  does 
not  the  law  make  the  moral  obligation  a 
legal  one?  Merrywtather  v.  Nixan,  8 
Term  R.  18(5,  the  leading  case  on  tlie  sub- 
ject, was  of  a  joint  injury'  to  real  estate, 
and  for  the  joint  conversion  of  personal 
prf)perty,  being  machinery  in  a  mill.  In 
Colburn  v.  Patmore,  1  Cromp.  M.  &.  R.  73, 
the  proprietor  of  a  newspaiter  who,  for  a 
libel  published  in  it,  was  subjected  to  a 
criminal  information,  convicted,  and  fined, 
sought  to  recover  from  his  edit<jr,  who 
was  the  author  of  the  libel,  the  expenses 
which  he  had  incurred  by  his  misfeasance. 
Lord  LvxDHUKST  said:  "I  know  of  no 
case  in  which  a  person  who  has  committed 
an  act  declared  by  the  law  to  be  crim- 
inal has  been  permitted  t(»  recover  com- 
pensation against  a  person  who  has  acted 
jointly  with  him  in  the  commission  of  the 
crime."  So  in  Arnold  v.  Clifford,  2  .Sum. 
238.  it  was  held  a  promise  to  indemnify 
the  puljlisher  of  a  libel  is  void.  "No  one," 
said  Judge  Story,  "ever  imagined  that  a 
promise  to  pay  for  the  poisoning  of  an- 
other was  capable  of  being  enforced  in  a 
•court  of  justice. ''  In  Miller  v.  Fenton,  11 
Paige.  18,  the  wrong-doers  were  two  of 
the  officers  of  a  bank,  who  had  fraudu- 
lently abstracted  its  funds,  and  of  course 
there  could    be   no   contribution    between 


the  damages  in  an  action  for  an  escape, 
and  sued  the  other  for  contribution,  as 
like  the  case  of  two  joint  obligors."  From 
the  inclination  of  the  court  in  this  last 
case,  and  from  the  concluding  part  of 
Lord  Kenyon's  judgment  in  Merry  weather 
V.  Nixan,  and  from  reason,  justice,  and 
sound  policy,  the  rule  that  wrong-doers 
cannot  have  redress  or  contribution 
against  each  other  is  confined  to  cases 
where  the  person  seeking  redress  must  be 
presumed  to  have  known  he  was  doing 
an  unlawful  act."  In  Betts  v.  Gibbins.  2 
Adol.  &  E.  57,  Lord  Dexman  said :  "The 
case  of  Merry  weather  v.  Nixan,  8  Term  R. 
186,  seems  to  me  to  have  been  strained  be- 
yond what  the  decision  will  bear.  The  pres- 
ent casp  is  an  exception  to  the  general 
rule.  The  general  rule  is  that  between 
wrong-doers  there  is  neither  indemnity 
nor  contribution.  The  exception  is  where 
the  act  is  not  clearly  illegal  in  itself,  and 
Merryweather  v.  Nixan,  8  Term  R.  186, 
was  only  a  refusal  of  a  rule  nisi."  "In 
Adamson  v.  Jarvis,  4  Bing.  66,  we  have 
the  observations  of  a  learned  person  fa- 
miliar with  commercial  law.  "  A  promise 
to  indemnify  against  an  act  not  kn(nvn  to 
the  promisee  at  the  time  to  be  unlawful 
is  valid.  Coventry  v.  Barton,  17  Johns. 
142;  Stone  V.  Hooker, 9  Cow.  154.  In  Pear- 
son  V.  Skelton,  1  Mees.    &  W.   504,  where 


crimina.s.  In  the  case  of  Attorney  (len- '  one  stage-coach  proprietor  had  been  sued 
eral  v,  Wilson,  4  Jur.  1174,  cited  in  the  ,  for  the  negligence  of  a  driver,  and  dam- 
above  case  by  the  chancebor,  and  also  re- :  ages  had  been  recovered  against  him, 
ported  in  1  Craig  &  P.  1,  where  it  was  con-  ■  which  he  had  paid,  and  he  sought  contri- 
tended  that  all  the  persons  charged  with  i  bution  from  another  of  the  proprietors,  it 
the  breach  of  trust   should   be   made   par- '  was  held  that  the  rule  there  is  no  contribu- 


ties.  Lord  Cottenham  said:  "In  cases  of 
this  kind,  where  the  liability  arises  from 
the  wrongful  act  of  the  parties,  each  is 
liable  for  all  the  consequences,  and  there 
is  no  contribution  between  them,  and 
each  case  is  distinct,  depending  upon  the 
evidence  against   each    party.     It  is  there- 


tion  between  joint  tort-feasors  does  not 
apply  to  a  case  where  the  party  seeking 
contribution  was  a  tort-feasor  only  by  in- 
ference of  law.  butisconfined  tocases  where 
it  must  be  presume  1  that  the  party  knew 
he  was  committing  an  unlawful  act.  The 
same  doctrine  was  maintained  in  Wooley  v. 


fore  not  necessary  to  make  all  parties  who  Batte,  2  Car.  &  P.  417.  These  cases  have 
maj'  more  or  less  have  joined  in  the  act  been  followed  in  this  court  in  Horbach's 
complained  of."'  Seddon  v.  Connell,  10  Adm'rsv.Elder,  18Pa.St.33.  "Here,  "said 
Sim.  81,  is  to  the  same  effect.  In  Story  on  j  Judge  Coulter,  "  the  plaintiff  and  defend- 
Partnersiiip,  (section  220, )  after  speaking  ant  are /h  equnli  Jure  The  plaintiff  has 
of  the  general  rule  that  there  is  no  con-  exclusively  borne  the  burden  which  ought 
tribution  between  joint  wrong-doers,  the  ■  to  have  been  shared  b.v  the  defendant, 
author  says:  "But  the  rule  is  to  be  un- i  who  thertfore  ought  to  contribute  his 
derstood  according  to  its  true  sense  and  '  share,  "  "Contribution,  "  says  Lord  Chief 
meaning,  which  is  where  the  tort  is  a  '  Baron  Eyre,  in  Bering  v.  Earl  of  Winchel- 
known  meditated  wrong,  and  not  where  j  sea,  1  Cos.  318,  "is  bottomed  and  fixed  on 
the  party  is  acting  under  the  supposition  [general  principles  of  natural  justice,  and 
of  the  entire  innocence  and  propriety  of  |  does  not  spring  from  contract."  These 
the  act,  and  the  tort  is  merely  one  by  con-  <  piiiiciples   rule  the    case    before  us.     The 


struction  or  inference  of  law.  In  the  lat- 
ter case,  although  not  in  the  former,  there 
may  be,  and  properlj^is,  a  contribution  al- 
lowed by  law  for  such  payments   and   ex- 


parties  plaintiff  and  defendant  are  two 
municipal  corporations,  jointly'  bound  to 
keep  this  bridge  in  repair.  These  bodies 
can   act   only  by  their  legally  constituted 


penses  between  constructive  wrong-doers,    agents,  their  commissioners,  who  examine 
whether  partners  or  not."    The  case   of :  the  structure,  and    order  repair   which   is 


Adamson  v.  Jarvis,  cited  by  the  1-arned 
commentators,  is  in  4  Bing.  66,  in  which 
Lord  Chief  Justice  Best,  after  noticing 
Merryweather  V.  Nixan,  says:  "The  case 
of  Philips  V.  Biggs,  Hardr.  164,  [which 
was  on  the  equity  side  of  the  exchequer] 
was  never  decided  ;  but  the  court  of  chan- 


done.  They  erred  in  judgment,  and  both 
were  liable  for  the  consequences  of  that 
error,  and  one,  having  paid  the  whole  of 
the  damages,  is  entitled  to  contribution 
from  the  other. 

Judgment  reversed,  and  venire  de  novo 
awarded. 


(See,  also,  Bailey  v.  Bussing,  38  Conn.  455;  Nichols  v.  Kowling,  S2  Ind.  488;  Churchill  v.  Holt,  ISl 
Mass.  67.) 


70 


LAW  OF  TORTS. 


ASSAULT   AND  BATTERY. 


Nature  of  an  assault — Difference  between  a  civil  and  a  criminal  as- 
sault. 


(78  Ala.  463.) 

Chapman  v.  State. 

(Supreme  Court  of  Alabama.    Dec.  Term,  1884.) 

ASSAULT — What  Constitutes. 

Presenting  an  unloaded  gun  at  one  who  sup- 
poses it  to  be  loaded,  although  within  the  dis- 
tance the  gun  would  carry  if  loaded,  is  not,  with- 
out more,  such  an  assault  as  can  be  punished 
criminally,  although  it  may  sustain  a  civil  suit 
for  damages. 

Appeal  from  circuit  court,  Barbour 
county. 

Indictment  for  assault  and  battery.  De- 
fendant was  convicted  of  assault,  and  ap- 
pealed from  the  judgment. 

H.  D.  Clayton,  Jr.,  for  appellant.  Thos. 
N.  McCleHan,  Atty.  Gen.,  for  the  State. 

SoMERViLLE,  J.  The  defendant  was  in- 
dicted for  an  assault  and  battery  upon 
the  person  of  one  McLeod,  and  was  con- 
victed of  a  mere  assault.  It  may  he  that, 
if  the  indictment  had  been  for  robbery,  the 
facts  in  evidence  would  have  sustained 
the  allegation  of  an  assault,  which,  incases 
of  that  nature,  is  often  merely  construct- 
ive; for  every  attempt  at  robberj',  or  to 
commit  rape,  or  to  do  other  like  personal 
injury,  involves  within  it  the  idea  of  an 
assault,  either  actual  or  constructive.  The 
Ijresent  conviction,  however,  can  be  sus- 
tained only  on  the  theorj^  that  it  was  an 
assault  for  the  defendant  to  present  or 
aim  an  unloaded  gun  at  the  person  charged 
to  be  assaulted,  in  such  a  menacing  man- 
ner as  to  terrify  him,  and  within  such  dis- 
tance as  to  have  been  dangerous  had  the 
weapon  been  loaded  and  discharged.  On 
this  question,  the  adjudged  cases,  both  in 
this  country  and  in  England,  are  not 
agreed,  and  a  like  difference  of  opinion  pre- 
vails among  the  most  learned  commenta- 
tors of  the  law.  We  have  had  occasion  to 
examine  these  authorities  with  some  care 
on  more  occasions  than  the  present,  and 
we  are  of  the  opinion  that  the  better  view 
is  that  presenting  an  unloaded  gun  at  one 
who  supposes  it  to  be  loaded,  although 
within  the  distance  the  gun  would  carry 
if  loaded,  is  not,  without  more,  such  an 
assault  as  can  be  punished  criminallj',  al- 
though it  may  sustain  a  civil  suit  for  dam- 
ages. The  conflict  of  authorities  on  the 
subject  is  greatly  attributable  to  a  failure 
to  observe  the  distinction  between  these 
t«'o  classes  of  cases.  A  civil  action  would 
rest  upon  the  invasion  of  a  person's  "right 
to  live  in  society  without  being  put  in  fear 
of  personal  harm,"  and  can  often  be  sus- 
tained by  proof  of  a  negligent  act  resulting 
in  unintentional  injury.  Peterson  v.  Haft- 
ner,  ii6  Amer.  Rep.  81;  Cooley,  Torts,  161. 
An  indictment  for  the  same  act  could  be 
sustained  only  upon  satisfactory  proof  of 
criminal  intention  to  do  personal  harm 
to  another  by  violence.    State  v.  Davis,  I 


Ired,  125.  The  approved  definition  of  an 
"assault"  involves  the  idea  of  an  inchoate 
violence  to  the  person  of  another,  with  the 
pre.sent  means  of  carrying  the  intent  into 
effect.  2  Greenl.  Ev.  Jj  82;  Rose.  Crim.  Ev. 
(7th  Ed.)  296;  People  v.Lilley,43  Mich.  521, 
5N.W.  Rep.  982.  Most  of  our  decisions 
recognize  the  old  view  of  the  text-books, 
that  there  can  be  no  criminal  assault  with- 
out a  present  intention,  as  well  as  present 
ability,  of  using  some  violence  against  the 
person  of  another.  1  Russ.  Crimes,  (9th 
Ed.)  1019;  State  v.  Blackwell,  9  Ala.  79; 
Tarver  v.  State,  43  Ala.  ">TA.  In  Lawson 
V.  State,  30  Ala.  14,  it  was  said  that,  "to 
con.stitute  an  assault,  there  mtist  be  the 
commencement  of  an  act  which,  if  not 
prevented,  would  produce  a  battery."  The 
case  of  Balknm  v.  State,  40  Ala.  671,  which 
was  decided  bj'  a  divided  court,  probably 
does  not  harmonize  with  the  foregoing  de- 
cisions. It  is  true  that  some  of  the  modern 
text-writers   define  an   assault   as  an  ap- 

!  parent  attempt  by  violence  to  do  corporal 
hurt  to  another,  thus  ignoring  entirely  all 
question  of  any  criminal  intent  on  the  part 
of  the  perpetrator.  1  Whart.  Crim.  Ev. 
§  603;  2  Bish.  Crim.  Law,  §  32.  The  true 
test  cannot  be  the  mere  tendency  of  an  act 
to  produce  a  breach  of  the  peace;  for  op- 
probrious language  has  this  tendency-,  and 
no  words,  however  violent  or  abusive, 
can,  at  common  law,  constitute  an  as- 
sault. It  is  unquestionably  true  that  an 
apparent  attempt  to  do  corporal  injury 
to  another  maj'  often  justify  the  latter  in 
promptly  resorting  to  measures  of  self-de- 
fense. But  this  is  not  because  such  appar- 
ent attempt  is  itself  a  breach  of  the  peace, 
for  it  maj'  be  an  act  entirely  innocent.  It 
is  rather  because  the  person  who  supposes 
himself  to  be  assaulted  has  a  right  to  act 
upon  appearances,  where  tiiey  create  rea- 
sonable grounds  fromAvhich  to  apprehend 
imminent  peril.  There  can  be  no  differ- 
ence, in  reason,  between  presenting  an  un- 
loaded gun  at  an  antagonist  in  an  affray, 
and  presenting  a  walking  cane,  as  if  to 
shoot,  provided  he  honestly  believes,  and 
from  the  circumstances  has  reasonable 
ground  to  believe,  that  the  cane  was  a 
loaded  gun.  Each  act  is  a  mere  menace, 
the  one  equally  with  the  other;  and  mere 
menaces,  whether  by  words  or  acts,  with- 
out intent  or  ability  to  injure,  are  not 
punishable    crimes,    although    tliey    may 

!  often  constitute  sufficient  ground  for  a 
civil  action  for  damages.  The  test,  more- 
over, in  criminal  cases,  cannot  be  the  mere 
fact  of  unlawfully  putting  one  in  fear,  or 
creating  alarm  in  the  mind;  for  one  may 
obviously  be  assaulted,  although  in  com- 
plete ignorance  of  the  fact,  and  therefore 
entire! V  free  from  alarm.  People  v.  Lilley, 
43  Mich.  .525,  5  N.  W.  Rep.  982.  And  one 
may  be  put  in  fear  under  pretense  of  beg- 


ASSAULT  AND  BATTERY. 


71 


ging.as  in  Taplin's  Case,  occurring  during 
the  riots  in  London,  decided  in  1780,  and 
reported  in  2  East,  F.  C.  712,  and  cited  in 
many  of  the  otlier  old  authorities.  These 
views  are  sustained  by  the  spirit  of  our 
own  adjudged  cases,  cited  above,  as  well 
as  by  the  following  authorities,  which  are 
directly  in  point:  2  Greenl.  Crim.  Law 
Eep.,  and  note  on  pages  271-275,  where  all 
the  cases  are  fully  reviewed  ;  2  Add  Torts, 
(Wood's  Ed.  Is81,)  ^  788.  note,  pages  4-7; 
Kosc.  Crim.  Ev.  (7th  Ed.)  296;  1  Russ. 
Crimes,  (9th  Ed.)  1020;  BlaUe  v.  Barnard, 
9  Car.  &  P. 620;  Reg.  v.  James,  1  Car.  &  K. 
530;  Robinson  v.  State,  31  Tex.  170;  McKay 


V.  State,  44 Tex.  43 ;  State  v.  Davis,  35  Araer. 
Dec.  735.  The  opposite  view  is  sustained 
by  the  following;  authors  and  adjudged 
cases:  7  Bish.  Crim.  Law.  (7th  Ed.)  §  32; 
1  Whart.  Crim.  Law,  (9th  Ed.)  §§  182,  003; 
Reg.  V.  St.  George,  9  Car.  &  P.  4S3 ;  Com. 
V.  White,  110  Mass.  407;  State  v.  Sliepard, 
10  Iowa,  126;  State  v.  Smith.  2  Humph. 
457.  See.also,3Grpenl.Ev.(14th  Ed.)  §59, 
note  ft;  1  Archb.Crim.  Pr.  &  PI.  (Pom.  Ed.) 
2S2,  283,  907;  State  v.  Benedict,  11  Vt.  238; 
State  V.  Neely,  74  N.  C.  425.  The  rulings  of 
the  court  were  opposed  tothese  views,  and 
the  judgment  must  therefore  be  reversed, 
and  the  cause  remanded. 


(Beach  v.  Hancock,  27  N.  H.  223,  holds  that  a  civil  action  will  lie  for  aiming  an  unloaded  pistol 
within  shooting  distance,  with  an  apparent  purpose  of  firing.  Com.  v.  White,  110  Mass.  407,  holds  such 
an  act  to  be  also  a  criminal  assault;  while  State  v.  Sears,  &6  Mo.  169;  State  v.  Godfrey,  17  Or.  3U0,  20 
Pac.  Rep.  62.5,— are  to  the  contrary.  See,  also.  People  v.  Lilley,  43  Mich.  531,  5  N.  W.  Rep.  982;  Bishop 
V.  Ranney,  59  Vt.  316,  7  Atl.  Rep.  820.) 


(3  Carr.  &  P.  373.) 

MORTIX  v.  Shoppee. 

{Court  of  Kinifs  Bench.    Oct.  27,  1828.) 

Assault — What  Constitutes. 

Riding  after  a  person,  so  as  to  compel  him  to 
run  to  shelter  to  avoid  being  beaten,  is,  in  law, 
an  assault. 

Action  for  assault.  Plea,  the  general 
issue.  The  plaintiff  was  walking  along 
a  footpath,  by  the  road-side,  at  Hilling- 
don,  and  the  defendant,  who  was  on 
horseback,  i-ode  after  him  at  a  quick  pace. 
The  plaintiff  ran  away,  and  got  into  his 
own  garden,  when  the  defendant  rode  up 
to  the  garden  gate,  (the  plaintiff  then 
being  in  the  garden  about  three  yards 
from  him,)  and,  shaking  his  whip,  said: 
"Come  out,  and  I  -will  lick  you  before 
your  owu  servants." 

Mr.  Deiiitjun,  C.  S..  for  defendant,  ob- 
jected that  this  did  not  amount  to  an  as- 
sault. 

Tenterden,  C.  J.  If  the  defendant  rode 
after  the  plaintiff,  so  as  to  compel  him 
to  run  into  his  garden  for  shelter,  to 
avoid  being  beaten,  that  is  in  law  an  as- 
sault. 

Verdict  for  the  plaintiff.    Damages,  40s. 


(4  Carr.  &  P.  349.) 

Stephens  v.  Myeks. 

{Court  of  Common  Pleas.    July  17, 1830.) 

Assault — What  Constitutes. 

Advancing  in  a  threatening  attitude  and  with 
intent  to  strike  another,  so  that  the  blow  would 
almost  immediately  reach  him,  is,  in  law,  an  as- 
sault by  the  person  advancing  with  such  intent, 
although  he  is  stopped  before  he  is  near  enough 
to  the  other  to  strike  him. 

Action  for  assault.  The  declaration 
stated  that  the  defendant  threatened  and 
attempted  to  assault  the  plaintiff.  Plea, 
not  guilty.  It  appeared  that  the  plaintiff 
was  acting  as  chairman  at  a  parish  meet- 
ing, and  sat  at  the  head  of  a  table,  at 
which  table  the  defendant  also  sat ;  there 
being  about  six  or  seven  persons  between 
him  and  the  plaintiff.     The  defendant  hav- 


ing, in  the  course  of  some  angry  discus- 
sion which  took  place,  been  very  vocifer- 
ous, and  interrupted  the  proceedings  of 
the  meeting,  a  motion  was  made  that  he 
should  be  turned  out,  which  w-as  carried 
by  a  very  large  majority.  Upon  this  the 
defendant  said  he  would  rather  pull  the 
chairman  out  of  the  chair  than  be  turned 
out  of  the  room,  and  immediately  ad- 
vanced, with  his  fist  clenched,  towards  the 
chairman,  but  was  stopped  by  thechurch- 
warden,  who  sat  next  butonetothechair- 
man,  at  a  time  when  he  was  not  near 
enough  for  any  blow  he  might  have  medi- 
tated to  have  reached  the  chairman;  but 
the  witnesses  said  that  it  seemed  to  them 
that  he  was  advancing  with  an  intention 
to  strike  the  chairman. 

Mr.  Spankie,  Serjt.,  for  the  defendant, 
upon  this  evidence,  contended  that  no  as- 
sault had  been  committed,  as  there  was 
no  power  in  the  defendant,  from  the  situ- 
ation of  the  parties,  to  execute  his  threat; 
there  was  not  a  present  ability;  he  had 
not  the  means  of  executing  his  intention 
at  the  time  he  was  stopped. 

TiND.\L,  C.  J.,  in  his  summing  up,  said  it 
is  not  every  threat,  when  there  is  no  act- 
ual personal  violence,  that  constitutes  an 
assault;  there  must,  in  all  cases,  be  the 
means  of  carrying  the  threat  into  effect. 
The  question  I  shall  leave  to  you  will  be 
whether  the  defendant  was  advancing  at 
the  time,  in  a  threatening  attitude,  to 
strike  the  chairman,  so  that  his  blow 
would  almost  immediately  have  reached 
the  chairman,  if  he  had  not  been  stopped. 
Then,  though  he  was  not  near  enough  at 
the  time  to  have  struck  him,  yet  if  he  was 
advancing  with  that  intent  I  think  it 
amounts  to  an  assault  in  law.  If  he  was 
so  advancing  that,  within  a  second  or  two 
of  time,  he  would  have  reached  the  plain- 
tiff, it  seems  to  me  it  is  an  assault  in  law. 
If  you  think  he  was  not  advancing  to 
strike  the  plaintiff,  then  only  can  you  find 
your  verdict  for  the  defendant ;  otherwise 
you  must  find  it  for  the  plaintiff,  and  give 
him  such  damages  as  you  think  the  nat- 
ure of   the  case  requires. 

Verdict  for  the  plaintiff.    Damages,  Is. 


(See,  also,  Hays  v.  People,  1  Hill,  351,  for  a  good  definition  of  an  assault.) 


72 


LAW  OF  TORTS. 


Effect  of  accompanying  words  indicating  that  there  is  no  intent  to 
do  actual  violence. 


(1  Ired.  Law,  375.) 

State  v.  Crow. 

(Supreme  Court  of  Nor'th  Carolina.    June  Term, 
1641.) 

Assault — Words  Ixdicatixg  Ixtext. 

At  the  trial  of  an  indictment  for  assault,  there 
was  evidence  that  defendant,  in  a  quarrel  with 
another,  raised  a  whip  and  shook  it  at  him,  say- 
ing at  the  same  time,  "AYere  you  not  an  old  man, 
1  would  knock  you  down;"  but  he  did  not  strike, 
although  within  striking  distance,  and  not  pre- 
vented by  any  one.  Held,  that  the  jury  might 
consider  such  words,  if  used  by  defendant,  as 
tending  to  qualify  his  acts;  and  that  if  at  the 
time  he  raised  his  whip  he  had  no  present  pur- 
pose to  strike,  it  was  not,  in  law,  an  assault. 

Appeal  from  superior  court,  Rutherford 
county;  Battle,  Judge. 

Indictment  against  Abraham  Crow  for 
assault  on  William  Graj'son.  At  the  tri- 
al, a  witness  testified  that  he  heard  some 
words  between  the  parties,  and  then  saw 
defendant  raise  his  whip,  and  shake  it  at 
Graj'son,  and  heard  liim  swear  that  he 
had  a  great  mind  to  kill  Grayson,  and 
that  defendant  was  at  the  time  within 
striking  distance  of  Grayson,  but  did  not 
strike  him,  although  no  one  interfered. 
One  or  two  others  testified  that  the^'  did 
not  see  defendant  raise  the  Avhip,  but 
heard  him  say  to  Grayson,  "  Were  you  not 
an  old  man,  I  would  knock  you  down." 
On  behalf  of  defendant,  his  counsel  argued 
that  these  words,  accompanying  his  acts, 
qualified  them,  and  showed  that  he  had 
no  intention  of  striking,  and  that  conse- 
quently there  was  no  such  offer  or  at- 
tempt to  strike  as  would  constitute  an  as- 
sault. The  court  charged  the  jury  that, 
ev'en  though  such  words  were  used  by  de- 
fendant when  he  raised  his  whip  and 
shook  it  at  Grayson,  yet  if  his  conduct 
was  such  as  would  induce  a  man  of  ordi- 
nary firmness  to  suppose  he  v?as  about 
to  be  stricken,  and  to  strike  his  assailant 
in  self-defense,  the  latter  would  be  guilty. 
Otherwise  there  might  be  a  fight,  and  the 
peace  broken,  and  yet  neither  party  be 
guilty.  And,  further,  that  otherwise  one 
man  might  follow  another  all  over  the 
court -yard,  shaking  a  stick  over  his  head, 
and  yet  not  be  guilty,  provided  he  took 
care  to  declare,  while  he  was  doing  so, 
that  "he  had  a  great  luind  to  knock  him 
down."    The  jury  found  defendant  guilty. 

(The  rule  is  the  same  in  civil  and  criminal  cases.    Tuberviile  v.  Savage,  1  Mod.  S;  Com.  v.  Eyre, 
1  Serg.  &  R.  847.    Compare  State  v.  Hampton,  63  N.  C.  13.) 


A  motion  by  him  for  a  new  trial  was  denied 
and  judgment  was  pronounced  against 
him.     From  the  judgment  he  appealed. 

Tt)e  Attorney  General,  for  the  State, 
cited  Archb.  Crim,  PI.  '647;  Hawkins,  c. 
52,  §  1. 

No  counsel  appeared  for  defendant. 

Daniel,  J.  The  judge  charged  the  jury 
"  that  if  the  conduct  of  the  defendant 
was  such  as  would  induce  a  man  of  ordi- 
nary firmness  to  suppose  he  was  about  to 
be  stricken,  and  to  strike  in  self-defense, 
the  defendant  would  by  such  ct)nduct  be 
guilty  of  an  assault."  We  admit  that 
such  condu(;t  would  be  strong  evidence  to 
prove,  what  every  person  who  relies  on 
the  plea  of  son  nnsault  demesne  must 
prove  to  support  his  plea,  to-wit,  that 
his  adversary  first  attempted  or  offered 
to  strike  him  ;  but  it  is  not  conclusive  ev- 
idence of  that  fact,  for  if  it  can  be  collected, 
notwithstanding  appearances  to  the  con- 
trary, that  there  was  not  a  present  pur- 
pose to  do  an  injury,  there  is  no  assault. 
State  V.  Davis,  1  Ired.  127.  The  law 
makes  allowance  to  some  extent  for  the 
angry  passions  and  infirmities  of  man. 
It  seems  to  us  that  the  words  used  by  the 
defendant,  contemporaneously  with  the 
act  of  raising  his  whip,  were  to  be  taken 
into  consideration,  as  tending  to  qualify 
that  act,  and  show^  that  he  had  no  inten- 
tion to  strike.  The  defendant  did  not 
strike,  although  he  had  an  opportunity 
to  do  so,  and  was  not  prevented  by  any 
otherperson.  Thejudgeshould,  asitseems 
to  us,  have  told  the  jury  that  if,  at  the 
time  he  raised  his  whip  and  made  use  of 
the  words,  "Were  you  not  an  old  man,  I 
would  knock  you  down,"  the  defendant 
had  not  a  present  purpose  to  strike,  in 
law  it  was  not  an  assault.  We  again  re- 
peat what  was  said  in  Davis' Case:  "It 
is  difficult  to  draw  the  precise  line  which 
separates  violence  menaced  from  violence 
begun  to  be  executed,  for,  until  the  execu- 
tion of  it  be  begun,  there  can  be  no  as- 
sault.'' The  evils  which  the  judge  sup- 
posed might  follow,  if  the  law  was  differ- 
ent from  what  he  stated  it  to  be,  can  al- 
ways be  obviated  bj'  the  offending  party's 
being  hound  to  his  good  behavior.  There 
must  be  a  new  trial. 

New  trial  awarded. 


Nature  of  a  battery. 


(6  Mod.  149.) 

Cole  v.  Turner. 

(Court  of  Kimg^s  Bench.    Easter  Term,  1794.) 

Assault  and   Battery  —  What   Constitutes  a 
Battery. 
To    touch    another    in    anger,    though   in  the 
slightest  degree,  or  to  use  violence  against  another 
to  rudely  force  a  passage,  is,  in  law,  a  battery. 

Before  Holt,  C.  J.,  at  nisi prius. 


Holt,  C.  J.,  upon  evidence  In  trespass 
for  assault  and  battery,  declared — First, 
that  the  least  touchingof  anotherin  anger 
is  a  battery:  secondly,  if  two  or  more 
meet  in  a  narrow  passage,  and,  without 
any  violence  or  design  of  harm,  the  one 
touches  the  other  gently,  it  will  be  no  bat- 
tery ;  thirdly,  if  any  of  them  use  violence 
against  the  other,  to  force  his  way  in  a 
rude,  inordinate  manner,  it  will  be  a  bat- 


ASSAULT  AND  BATTERY 


73 


tery,orany  struggle  about  the  passage 
to  that  degree  as  may  do  hurt  will  be  a 
battery. 

(SS  Ala.  100,  r  South.  Rep.  154.) 
EXGELHAUDT   V.  STATK, 

(Supreme  Cowt  of  A.labanui.    Jan.  15,  1890.) 
Assault  and   Battekt  —  What   Coxstitdtes   a 
Battery. 

Defendant  approached  another,  holding  a  stick 
raised,  within  striking  distance,  as  if  to  strike  the  I 
latter,  and,  when  prevented  by  tiieactof  the  latter 
in  wrenching  the  stick  from  tiim,  drew  a  pistol,  j 
The  other  seized  and  turned  aside  the  hand  hold- 
ing the  pistol  as  it  was  discharged,  and  they 
struggled  together,  until  defendant  fell  or  was 
forced  to  the  ground,  the  pistol  being  again  dis- 
charged in  the  air  during  the  struggle.  Held, 
that  such  laying  hold  of  each  other's  persons  in 
a  rude  and  hostile  manner  constituted  a  battery, 
and  that,  there  being  no  justification  therefor 
on  the  part  of  defendant,  he  was  guilty  of  an 
assault  and  battery. 

Appeal  from  city  court  of  Montgomery; 
Thomas  Ahiungtox,  Judge. 

Indictment  against  John  Engelhardt  for 
an  assault  on  \V.  F.  Vandiver  with  intent 
TO  murder  him.  The  assault  was  com- 
mitted on  the  sidewalk  in  front  of  the  de- 
fendant's store,  in  the  city  of  Montgomery, 
wliere  Vandiver  was  standing  with  one 
J.  Faunce.  Vandiver  testified  that  the  de- 
fendant passed  him  a  few  moments  before 
the  assault,  and  came  back,  and  said  to 
iiim,  "You  have  not  treated  me  right;" 
that  he  attempted  to  pass  into  liis  store, 
l)ut  was  intercepted  by  the  defendant,  who 
"jumi)ed  back  and  drew  his  pistol ;''  that 
after  deliberation,  "thinking  that  there 
was  no  fight  in  him."  witness  commenced 
advancing  on  him,  having  in  his  hand  an 
open  pen-knife,  with  wliich  he  had  been 
cleaning  his  fingernails;  that  the  defend- 
ant fired  at  him,  pointing  his  pistol  to- 
wards him,  but  witness  clinclied  liim,  and 
got  control  of  the  pistol :  that  the  pistol 
was  again  discharged  during  rhe  struggle 
l)etween  them,  but  he  succeeded  in  getting 
the  defendant  down,  and  held  him  down, 
with  the  aid  of  Faunce.  Faunce  testified, 
on  the  part  of  the  prosecution,  that  the 
defendant,  when  he  approached  Vandiver, 
had  a  small  cane  in  his  hand,  which  he 
raised  wlieu  in  striking  distance,  but  Van- 
diver wrenched  it  from  his  hand;  that  the 
defendant  then  drew  his  pistol,  which  was 
self-cocking,  and  Vandiver  caught  his  right 
hand,  and  turned  the  pistol  aside  as  it  was 
discharged,  the  ball  striking  the  ground; 
and  tliat  the  weapon  was  again  dis- 
cliarged  during  the  struggle  between  them, 
or  as  tlie  defendant  was  falling.  The 
court  charged  the  jury  that,  "if  they  be- 
lieve the  evidence,  the  defendant  was  guilty 
of  an  assault,  or  an  assault  and  battery." 
The  defendant  excepted  to  this  charge. 
The  jury  found  defendant  guilty  of  assault 
and  battery,  and  he  was  fined  $300.  De- 
fendant appealed  from  the  judgment  of 
conviction. 


A.  A.    Wiley,  for    appellant. 
Lomax,  for  the  State. 


Tennent 


Somp:kville,  J.  1.  The  court,  in  our 
opinion,committed  no  error  in  charging  the 
jury  that,  if  they  believed  the  evidence,  the 
defendant  was  guilty  of  assault,  or  as- 
sault and  battery.  There  was  undoubt- 
edly an  attempt  or  offer,  oh  the  defend- 
ant's part,  with  force  and  violence,  to  do 
a  corporal  hurt  to  theprosecutor,— an  at- 
tempt manifested  both  by  aiming  and  fir- 
ing a  loaded  pistol  in  the  direction  of  his 
person,  and  by  raising  a  stick,  within  strik- 
ing distance,  as  if  to  strike  him,  which  was 
prevented  by  his  wrenching  the  stick  from 
the  defendant's  hand.  This  was  clearly 
an  assault,  constituting,  as  it  did,  one  or 
more  acts,  either  of  whicli.  if  consummated, 
would  have  resulted  in  a  battery.  Chap- 
man V.  State,  78  Ala.  463,  ante,  70. 

2.  The  evidence,  moreover,  shows  a  bat- 
tery, which  is  "  the  unlawful  application 
of  violenceto  the  person  of  another.  "  May, 
Crim.  I-aw,  §  55;  Com.  v.  McKie.  61  Amer. 
Dec.  410.  "A  battery  is  not  necessarily  a 
forcible  striking  with  the  hand  or  stick, 
or  the  like,  but  includes  every  touching  or 
laying  hold  (however  trifling)  of  another's 
person,  or  his  clothes,  in  an  angry,  re- 
vengeful, rude,  insolent,  or  hostile  man- 
ner."  1  Amer.  &  Eng.  Enc.  Law,  7S:}. 
There  is  no  conflict  in  that  part  of  the  evi- 
dence showing  the  circumstances  attend- 
ing the  difficulty.  To  prevent  being  shot 
bj'  the  pistol,  the  prosecutor,  Vandiver, 
seized  the  defendant's  right  hand,  which 
contained  the  weapon,  forcing  its  dis- 
charge in  the  air.  The  use  of  the  stick 
was  interrupted  in  like  manner  by  its 
seizure.  The  combatants  "clinched  "  and 
"struggled  together,  "  the  defendant  either 
falling  in  tlie  struggle,  or  being  pushed 
backward  to  the  ground,  and  firing  his 
pistol  a  second  time  in  the  air.  The  pros- 
ecutor and  a  by-stander  thereupon  got  on 
the  defendant,  and  held  him  down.  He 
may  or  may  not  have  used  more  force 
than  was  necessary  to  resist  the  assault 
by  the  defendant.  This  is  entirely  imma- 
terial, for  had  both  of  the  combatants 
fought  willingly  together,  and  neither  in 
self-deiense,  each  w^ould  have  been  guilty 
of  an  assault  and  battery  on  the  other. 
Com.  V.  Collberg,  119  Mass.  350;  Adams 
V.  Waggoner,  33  Ind.  531.  The  language  de- 
scribing the  contest  necessarily  implies  a 
contention  or  striving  together  for  the 
mastery,  one  of  the  other, — a  laying  hold 
of  each'other's  person  in  a  rude  and  hos- 
tile manner.  This  was  a  battery.  It  may 
have  been  justifiable  on  the  part  of  the 
person  assailed,  and  no  doubt  was.  But 
I  there  is  no  sort  of  pretext  that  the  act 
{  was  justifiable  on  the  part  of  the  defend- 
j  ant.  There  was  no  error  in  the  charge  on 
this  subject  to  which  exception  was  taken. 
•        ♦«♦••«• 

The  judgment  must  be  affirmed. 


74 


LAW  OF  TORTS. 


Assault  and  battery — Effect  of  consent. 


(45  Ohio  St.  177,  12  N.  E.  Rep.  185.) 

Barholt  v.  Wright. 

(Supreme  Court  of  Ohio.    May  10,  1887.) 

Assault  and  Battery — Consent. 

It  is  no  defense  to  an  action  for  assault  and 
battery  that  the  acts  complained  of  were  com- 
mitted in  a  fight  engaged  in  by  mutual  consent, 
although  such  consent  may  be  shown  in  mitiga- 
tion of  damages. 

Error  to  circuit  court,  Portage  county. 

Action  for  assault  and  battery.  The  ev- 
idence showed  that  plaintiff  and  defend- 
ant went  out  to  fight  by  agreement,  and 
did  fight,  and  plaintiff  was  severely  in- 
jured; one  of  his  fingers  being  so  bitten, 
among  other  things,  that  it  had  to  be 
amputated.  The  court  charged  that,  if  the 
parties  fought  by  agreement,  plaintiff 
could  not  recover,  and  a  verdict  was  re- 
turned for  defendant.  Upon  error  to  the 
circuit  court  a  new  trial  was  ordered.  De- 
fendant now  brings  error  to  reverse  that 
order. 

P.  B.  Covant  and  J.  N.  Nicfwls,  for  plain- 
tiff in  error.  W.  B.  Thomas,  Gen.  F.  Rob- 
inson,and  Cole  &  Wright,  for  defendant  in 
error. 

MiNSHALL,  J.  It  would  Seem  at  first 
blush  contrary  to  certain  general  princi- 
ples of  remedial  justice  to  allow  a  plain- 
tiff to  recover  damages  for  an  injury  in- 
flicted on  him  by  a  defendant  in  a  combat 
of  his  own  seeking;  or  where,  as  in  this 
case,  the  fight  occuri-ed  by  an  .agreement 
between  the  parties  to  fight.  Thus,  in 
cases  for  damages  resulting  from  the  clear- 
est negligence  on  the  part  of  the  defend- 
ant, a  recovery  is  denied  the  plaintiff  if  it 
appear  that  his  own  fault  in  any  way  con- 
tributed to  the  injurj'  of  which  he  com- 
plains. And  a  maxim  as  old  as  the  law, 
volenti  non  at  injuria,  fovhids  a  recovery 
by  a  plaintiff  where  it  appears  that  the 
ground  of  his  complaint  had  been  induced 
by  that  to  which  he  had  assented;  for, 
in  judgment  of  law,  that  to  which  a  par- 
ty assents  is  not  deemed  an  injury. 
Broom,  Leg.  Max.  268.  But  as  often  as 
the  question  has  been  presented,  it  has 
been  decided  that  a  recovery  may  be  had 
by  a  plaintiff  for  injuries  inflicted  by  the 
defendant  in  a  mutual  combat,  as  well  as 
in  a  combat  where  the  plaintiff  was  the 
first  assailant,  and  the  injuries  resulted 
from  the  use  of  excessive  and  unnecessary 
force  by  the  defendant  in  repelling  the  as- 
sault. These  apparent  anomalies  rest  up- 
on the  importance  which  the  law  attaches 
to  the  public  peace  as  well  as  to  the  life 
and  pei'son  of  the  citizen.  From  consid- 
erations of  this  kind  it  no  more  regards 
an  agreement  by  which  one  man  may 
have  assented  to  be  beaten  than  it  does 
an  agreement  to  part  with  his  liberty, 
and  become  Ihe  slave  of  another.  But 
the  fact  that  the  injuries  were  received  in 
a  combat  in  which  the  parties  had  en- 
gaged by  mutual  agreement  may  beshown 
in  mitigation  of  damages.  2  Greenl.  Ev. 
§  85;  Logan  v.  Austin,  1  Stew.  (Ala.)  476. 
This,  however,  is  the  full  extent  to   which 


the  cases  have  gone.  We  will  notice  a 
few  of  them.  In  Boulter  v.  Clark,  an  ear- 
ly case,  an  offer  was  made,  under  the  gen- 
eial  issue,  to  show  that  the  plaintiff  and 
the  defendant  fought  by  consent.  The 
offer  was  denied;  the  chief  baron  sa3Mng: 
"The  fighting  being  unlawful,  the  consent 
of  the  plaintiff  to  fight,  if  proved, -would 
be  no  bar  to  his  action."  Bull.  N.  P.  16. 
A  number  of  earlier  cases  were  cited,  and 
among  them  that  of  Matthew  v.  Ollerton, 
Comb.  218,  where  it  is  said  "that,  if  a 
man  license  another  to  beat  him,  such 
license  is  void,  because  it  is  against  tha 
peace."  It  will  be  found  upon  exam- 
ination that  this  case  was  not  for  an  as- 
sault and  battery  ;  it  was  on  an  award 
that  had  been  made  by  the  plaintiff  on  a 
submission  to  himself.  The  remark,  how- 
ever, made  in  the  reasoning  of  the  court, 
is  evidence  of  the  common  understanding 
of  the  law  at  that  early  day.  In  1  Steph. 
N.  P.  211,  it  is  said:  "If  two  men  engage 
in  a  b(jxing  match,  an  action  can  be  sus- 
tained by  either  of  them  against  the  oth-  ' 
er,  if  an  assault  be  made;  because  the  act 
of  boxing  is  unlawful,  and  the  consent  of, 
the  parties  to  fight  cannot  excuse  the  in- 
jury." So  in  Bell  v.  Hansley,  3  Jones,  (N. , 
C.)  131,  it  was  held  that  "one  may  recover 
in  an  action  for  assault  and  battery,  al- ^ 
though  he  agreed  to  fight  with  his  adver- 
sary ;  for,  such  agreement  to  break  the  > 
peace  heiug  void,  the  maxim,  volenti 
non  £t  injuria,  does  not  apply."  The  fol- 
lowing cases  are  to  the  same  effect: 
Stout  V.  Wren,  1  Hawks,  420;  Adams  v. 
Waggoner,  33  Ind.  531;  Shay  v.  Thomp- 
son, 59  Wis.  540.  18  N.  VV.  Rep.  473;  Logan 
V.Austin,!  Stew.  (Ala.)  476.  And  so  it  was 
held  in  Com.  v.  Collberg,119  Mass.  350,  that 
where  two  persons  go  out  to  fight  with 
their  fists,  by  consent,  and  do  fight  with 
each  other,  each  is  guilty  of  an  assault, 
although  there  is  no  anger  or  mutual  ill 
will.  Champer  v.  State,  14  Ohio  St.  437,  ' 
is  not  in  conflict  with  this,  as  will  be  ex- 
plained hereafter.  No  case  has  been  cited 
that  can  be  said  to  be  to  the  contrary. 
What  is  said  by  Peck,  J.,  in  Smith  v.  State, 
12  Ohio  St.  466,  that  "an  assault  upon  a 
consenting  party  would  seem  to  be  a  le- 
gal absurdity, "  must  be  applied  to  the 
facts  of  that  case.  The  judge  was  discuss- 
ing the  sufficiency  of  a  count  in  an  indict- 
ment for  an  assault  with  intent  to  com- 
mit a  rape,  without  an  averment  that  it 
was  made  forcibly  and  against  the  will  of 
the  female.  The  absence  of  consent  is  es- 
sential to  the  crime  of  rape,  or  of  an  as- 
sault with  intent  to  commit  a  rape, 
where  the  female  has  arrived  at  the  age 
at  which  consent  may  be  given.  Inter- 
course, because  illicit,  does  not  amount 
to  an  assault  where  the  female  consents, 
however  wrong  it  may  be  in  morals. 
This  is  all  that  was  meant  by  the  learned 
judge  in  using  the  language  quoted  from 
his  opinion.  In  all  such  cases  the  con- 
sent of  the  female  would,  without  doubt, 
be  a  bar  to  any  right  she  would  other- 
wise have  to  maintain  an  action  for  an  as- 
sault and  battery.  It  is  said  by  Judge 
CooJey  in  his  work   on   Torts  (page  163> 


ASSAULT  AND  BATTERY. 


75 


that  "consent  is  generally  afuU  and  perfect 
shield  nhen  that  is  complained  of  as  a 
civil  injury  which  wasconsented  to.  ♦  »  » 
A  niau  may  not  even  complain  of  tlieadul- 
tery  of  his  wife  which  he  connived  at  or 
assented  to.  If  he  concurs  in  tlie dishonor 
of  his  bed,  the  law  will  not  j^ive  him  re- 
dress, because  he  is  not  wronged.  These 
cases  are  plain  enough,  because  they  are 
cases  in  which  the  questions  arise  between 
tlie  parties  alone."  "But."  he  adds,  "in 
case  of  a  breach  of  the  peace  it  is  differ- 
ent. Thestate  is  wronj^ed  Dy  this,  and  for- 
bids it  on  public  jirounds.  *  *  »  The 
rule  of  law  is  therefore  clear  and  unques- 
tionable that  consent  to  an  assault  is  no 
justification.  The  excei)tion  to  this  gen- 
eral rule  embraces  only  those  cases  in 
which  that  to  which  assent  is  given  is 
matter  of  indifference  to  public  order." 
See,  also,  to  like  effect.  Pollock  on  Torts, 
139.  Neither  is  the  case  of  Champer  v. 
State,  14  Ohio  St. 487,  at  variance  with  tlie 
principle  upon  which  the  plaintiff  beUnv 
seeks  a  recoverj'.  The  case  seems  to  have 
been  somewhat  misapprehended  by  the 
courts  of  some  of  the  states,  as  well  as  by 
some  text-writers.  By  the  statutes  of  this 
state  a  distinct  offense  is  made  of  an  af- 
fraj'  or  agreement  to  fight;  and  the  effect 
of  the  holding  is  that  where  such  an  of- 
fense is  committed  the  indictment  must  be 
for  an  affray,  and  not  for  an  assault  and 
battery.  The  civil  right  of  either  party 
to  recover  of  the  other  for  injuries  received 
in  an  affray  is  not  affected  by  the  statute, 
nor  by  the  decision  just  referred  to.  Such 
seems  to  have  been  the  view  taken  by 
BoYNTON,  J.,  in  the  subsequent  case  of 
Darling  v.  Williams,  35  Ohio  St.  63.  The 
case  of  Fitzgerald  v.  Cavin,  110  Mass.  153, 
is  to  the  effect  that  consent  is  no  bar  to 
that  which  occasions  bodily  harm,  if  the 
act  was  intentionally  done.  It  is  upon 
the  same  principle  of  public  policy  that 
one  who  is  the  first  assailant  in  a  fight 
may  recover  of  his  antagonist  for  injuries 
inflicted  by  the  latter,  where  he  oversteps 
what  is  reasonably  necessary  to  his  de- 
fense, and  unnecessarily  injures  the  plain- 
tiff; or  that,  with  apparent  want  of  con- 
sistency, permits  each  to  bring  an  action 
in  such  case,  the  assaulted  party  for  the 
assault  first  committed  upon  him,  and  the 


assailant  for  the  excess  of  force  used  be- 
yond what  was  necessary  for  self-defense. 
Dole  V.  Erskine,  35  N.  H.  503;  criticising 
Elliott  V.  Brown,  2  Wend.  499;  Cooley, 
Tort*;,  165;  Darling  v.  Williams,  35  Ohio 
St. 63;  Gizler  v.Witzel,  82  111.  322.  And  see, 
also,  Com.  v.  Collberg.  supra.  It  would 
seem  that  under  the  Code  the  right  of  each 
combatant  to  damages  might  be  deter- 
mined and  measured  in  the  same  action. 
Swan,  PI.  Prec.  259,  note  a.  And  upon 
like  principle  it  has  been  ruled  that  the 
doctrine  of  contributory  negligence  has 
no  application  to  an  action  to  recover 
damages  for  an  assault  and  battery.  Ku- 
ter  V.  Foy,46  Iowa,  132;  Steinmetz  v.  Kel- 
ly, 72  Ind.  442;  Whitehead  v.  Mathaway, 
85  Ind.  85.  Negligence  of  the  plaintiff  con- 
tril)uting  to  the  injury  of  which  he  com- 
plains is  taken  into  consideration  only  in 
those  cases  where  the  liability  of  the  de- 
fendant arises  from  want  of  care  on  his 
part,  occasioning  injury  to  the  plaintiff ; 
it  does  not  apply  to  the  commission  of 
an  intentional  wrong.  A  question  was 
made  as  to  the  admissibility  of  the  evi- 
dence of  an  agreement  to  fight  under  the 
issue  made  by  the  pleadings,  the  answer 
being  a  general  denial.  If  the  evidence 
had  been  competent  for  auj  purpose,  oth- 
er than  in  mitigation  of  damages,  it 
would  have  been  under  the  issue  as  made. 
It  Avas  insisted  on  in  denial  of  the  right 
of  action,  and  not  as  an  avoidance  of  it; 
so  that  it  was  not  necessary  to  be  plead- 
ed as  new  matter.  If  it  had  been  so  plead- 
ed, it  would  have  been  subject  to  a  de- 
murrer. We  think  the  court  erred  in  its 
charge  to  the  jury.  The  injury  inflicted, 
the  loss  of  a  finger,  was  a  severe  one;  it 
amounted  in  fact  to  a  mayhem.  "Where 
the  injury,"  (a  mayhem,)  saj'S  the  author 
of  a  recent  and  quite  valuable  work  on 
Criminal  Procedure,  "takes  place  during 
a  conflict,  it  is  not  necessary  to  a  convic- 
tion that  the  accused  should  have  formed 
the  intent  before  engaging  in  the  conflict. 
It  is  sufficient  if  he  does  the  act  volun- 
tarily, unlawfully,  and  on  purpose.'* 
Maxw.  Crim.  Proc.  260.  It  was  permissi- 
ble to  the  defendant  to  show  the  agree- 
ment to  fight  in  mitigation  of  damages, 
but  not  as  a  bar  to  the  action. 
Judgment  affirmed. 


(See,  also,  Fitzgerald  v.  Cavin.  110  Mass.  1.53;  Com.  v.  Collberg,  119  Mass.  350;  Pillow  V.  Bushnell, 
5  Barb.  156 ;  Shay  v.  Thompson,  59  Wis.  540,  IS  N.  W.  Rep.  473.) 


Justifiable  and  excusable  assaults  and  batteries. 
A.   Self-defense — Defense  of  property. 


(4  Denio,  448.) 

ScRiBNER  V.  Beach. 

(Supreme  Court  of  New  York.    May,  1847.) 

Justifiable  ok  Excusable  Assault  —  Self-De- 
FEXSE — Defense  of  Pkopektt. 
Plaintiff  having  made  charcoal  on  land  which 
defendant  had  previously  occupied,  defendant 
came  to  the  place,  during  plaintiff's  absence  there- 
from, and  began  raking  out  the  coal  from  the  pit 
with  a  rake.  Plaintiff,  returning,  took  hold  of 
the  rake  to  take  it  from  defendant,  and  defend- 
ant knocked  him  down.  Plaintiff  again  attempted 
to  take  the  rake,  and  defendant  struck  him  with 


it  and  broke  his  arm.  Held,  that  there  was  a 
manifest  disproportion  between  the  assault  by 
plaintiff  and  the  battery  by  defendant,  and  the 
latter  was  not  justified,  either  on  the  ground  of 
self-defense,  or  of  defense  of  possession  of  the 
coal,  even  if  defendant  had  title  thereto. 

Motion  for  new  trial. 

Action  of  trespass  for  assaulting  plain- 
tiff. Defendant  pleaded  not  guilty,  with 
notice  of  son  assault  demesne,  and  that 
the  assault  was  committed  in  defense  of 
defendant's  personal  property',  namely,  a 
pit  of  charcoal  and   a  coal  rake.    At  the 


LAW  OF  TORTS. 


trial  it  appeared  that  the  assault  occurred 
<jn  land  of  which  defendant  had  been  in 
possession  about  three  j^ears  previously; 
that,  defendant  having  removed  to  an- 
other county,  plaintiff  had  taken  posses- 
sion of  the  land,  and  had  l)urned  charcoal 
upon  It.  While  plaintiff  was  absent,  for 
the  [)urpose  of  taking  the  coal  to  market, 
defendant  came  to  the  pit,  and  began  tak- 
ing out  the  coal  with  a  i-ake  which  he 
found  there,  having  also  a  wagon  in  which 
to  remove  the  coal.  Plaintiff,  returning, 
-asked  defendant  what  he  was  doing,  to 
which  defendant  answered  that  if  plaintiff 
would  come  there  he  would  show  him. 
Plaintiff  then  took  hold  of  the  rake,  for 
the  purpose  of  taking  it  from  defendant, 
who,  with  one  hand,  knocked  plaintiff 
down.  Plaintiff  arose,  and  again  took 
hold  of  the  rake;  but  defendant  pulled  it 
away,  and  with  it  aimed  a  blow  at  plain- 
tiff's head,  which  the  latter  sought  to  pre- 
vent by  putting  up  his  hand.  The  rake 
struck  his  arm  near  the  wrist,  and  fract- 
ured it.  Defendant  offered  proof  that  he 
had  title  to  the  land  on  which  the  coal  was 
burned,  which  was  uncultivated  and  un- 
improved; and  that  the  coal  was  made 
from  his  wood  cut  upon  that  land ;  but 
on  objection  by  plaintiff's  counsel  to  this 
evidence,  it  was  excluded.  The  jury  found 
a  verdict  for  plaintiff  for  .fl5().  Defendant 
moved  for  a  new  trial  on  a  case. 

J.  Van  Vleck,  for  the  motion.  H.  Hoge- 
boom,  opposed. 

Jewett,  J.  Self-defense  is  a  primary 
law  of  nature,  and  it  is  held  an  excuse  for 
breaches  of  the  peace,  and  even  for  homi- 
cide itself.  But  care  must  be  taken  that 
the  resistance  does  not  exceed  the  bounds 
of  mere  defense,  prevention,  or  recovery, 
so  as  to  become  vindictive;  for  then  the 
defender  would  himself  become  the  aggres- 
sor. The  force  used  must  not  exceed  the 
necessity  of  the  case.  Elliott  v.  Brown, 
2  Wend.  497;  Gates  v.  Lounsbury,  20  Johns. 
427;  Gregory  v.  Hill,  8  Term  K.  299;  Bald- 
win V.  Hayden,  6  Conn.  4-53;  3  Bl.  (>omm. 
3-.5;  1  Hawk.  P.  C.  130;  Cockcroft  v. 
Smith,  2  Salk.  642;  Curtis  v.  Carson,  2  N. 
H.  539.  A  man  may  justify  an  assault  and 
battery  in  defense  of  his  lands  or  goods, 
or  of  the  goods  of  another  delivered  to  him 
to  be  kept.  Hawk.  P.  C.  bk.  1,  c.  60,  §  23; 
Seaman  v.  Cuppledick,  Owen,  1.50.  But 
in  these  cases,  unless  the  trespass  is  ac- 
companied with  violence,  the  owner  of 
the  land  or  goods  will  not  be  justified  in 
assaulting  the  trespasser  in  the  first  in- 
stance, but  must  request  him  to  depart  or 
to  desist,  and,  if  he  refuses,  he  should 
gently  lay  his  hands  on  him  for  the  pur- 
pose of  removing  him,  and,  if  he  resist 
with  force,  then  force  sufficient  to  expel 
him  may  be  used  in  return  by  the  owner. 
Weaver  v.  Bush,  8  Term  R.  78;  Bull.  N.  P. 
19 ;  1  East,  P.  C.  406.  It  is  otherwise  if  the 
trespasser  enter  the  close  with  force  In 
that  case  the  owner  may,  without  pre- 
vious request  to  depart  or  desist,  use  vio- 
lence in  return,  in  the  first  instance,  pro- 
portioned to  the  force  of  the  trespasser, 
for  the  purpose  only  of  subduing  his  vio- 
lence. "A  civil  trespass, "  says  Hoi.royd, 
J.,  "will  not  justify  the  firing  a  pistol  at 
the   trespasser  in   sudden  resentment    or 


anger.  If  a  person  takes  forcible  posses- 
sion of  another's  close,  so  as  to  be  guilty 
of  a  breach  of  the  peace,  it  is  more  than 
a  trespass;  so  if  a  man  with  force  invades 
and  enters  the  dwelling-house  of  another. 
But  a  man  is  not  authorized  to  fire  a  pis- 
tol on  every  invasion  or  intrusion  into  his 
house.  He*  ought,  if  he  has  a  reasonable 
opportunity,  to  endeavor  to  remove  the 
trespasser  without  having  recourse  to 
the  last  extremity."  Meade's  Case,  Lewin, 
185;  Rose.  Crim.  Ev.  262.  The  rule  is  that, 
in  all  cases  of  resistance  to  trespassers, 
the  party  resisting  will  be  guilty  in  law  of 
an  assault  and  battery,  if  he  resists  with 
such  violence  that  it  would,  if  death  had 
ensued,  have  been  manslaughter.  Where 
one  manifestly  intends  and  endeavors,  by 
violence  or  surprise,  to  commit  a  known 
felony  upon  a  man's  person,  (as  to  rob, 
or  murder,  or  to  commit  a  rape  upon  a 
woman,)  or  upon  a  man's  habitation  or 
propert3%  (as  arson  or  burglary,)  the  per- 
son assaulted  may  repel  force  by  force; 
and  even  his  servant,  then  attendant  on 
him,  or  any  other  person  present,  may  in- 
terpose for  preventing  mischief ;  and  in  the 
latter  case  the  owner,  or  any  part  of  his 
family,  or  even  a  lodger  with  him,  may 
kill  the  assailant,  for  preventing  the  mis- 
chief. Fost.  Cr.  Law,  273.  The  resump- 
tion of  the  possession  of  land  and  houses 
by  the  mere  act  of  the  party  is  frequently 
allowed.  Thus  a  person  having  a  right  to 
the  possession  of  lands  may  enter  by  force, 
and  turn  out  a  person  who  has  a  mere 
naked  possession,  and  cannot  be  made  an- 
swerable in  damages  to  a  party  who  has 
no  right,  and  is  himself  a  tort-feasor.  Al- 
though if  the  entry  in  such  case  be  with  a 
strong  hand,  or  a  multitude  of  people,  it 
is  an  offense  for  which  the  party  entering 
must  answer  criminally.  Hyatt  v.  Wood, 
4  Johns.  150;  Sampson  v.  Henry,  13  Pick. 
36.  In  respect  to  personal  property,  the 
right  of  recaption  exists,  with  the  caution 
that  it  be  not  exercised  violently,  or  by 
breach  of  the  peace;  for,  should  these  ac- 
company the  act,  the  partj- would  then  be 
answerable  criminally.  But  the  riot  or 
force  would  not  confer  a  right  on  a  persoQ 
who  had  none;  nor  would  they  subject  the 
owner  of  the  chattel  to  a  restoration  of  it 
to  one  who  was  not  the  owner.  Hyatt  v. 
Wood,  supra.  In  the  case  of  personal 
property,  improperly  detained  or  taken 
away, it  maybe  taken  from  the  house  and 
custody  of  the  wrong-doer,  even  without 
a  previous  request;  but  unless  it  was 
seized,  or  attempted  to  be  seized,  forcibly, 
the  owner  cannot  justify  doing  anything 
more  than  gently  laying  his  hands  on 
the  wrong-doer  to  recover  it.  Weaver  v. 
Bush,  supra;  Com.  Dig.  "Pleader,  "3  M,  17; 
Spencer  v.  McGowen,  13  Wend.  256.  In  one 
branch  of  the  defense  the  defendant  set  up 
SOD  assault  demesne.  That  was  over- 
thrown by  evidence  showing  a  manifest 
disproportion  between  the  battery  given 
and  the  first  assault.  Even  a  wounding 
was  proved.  The  defendant  also  relied 
upon  a  defense  of  his  possession  of  certain 
personal  property,  which  he  insisted  was 
invaded  by  the  plaintiff,  and  in  the  defense 
of  which  he  committed  the  assault.  To 
sustain  this  defense,  he  proposed  to  prove 
that  the  coal-pit  was  on  new  and  unim- 


ASSAULT  AND  BATTERY. 


77 


proved  land,  to  which  he  had  title,  and 
that  the  -wood  from  which  the  coal  was 
made  was  cut  from  this  land  without  an^^ 
authority  from  him;  but  this  evidence 
was  rejectrd.  The  object  of  the  strife  be- 
tween the  parties  was  the  possession  of 
the  rake,  not  the  coal.  The  plaintiff  is  not 
shown  to  have  committed  a  single  act 
tending-  to  disturb  the  defendant  in  his 
possessi(;n  of  the  latter.  The  ownership 
of  the  coal,  therefore,  was  not  a  material 
fact.  But  admitting  that  the  defendant 
had  a  legal  title  to  the  coal,  and  that  the 
plaintiff's  object  in  regaining  possession 
of  the  rake  was  to  use  i*"  as  a  means  of  re- 
taking the  possession  of  the  coal,  still  the 
defendant  could  not  justify  the  wounding 
merely  in  defense  of  his  possession.  Greg- 
or3^  V.  Hill,  supra.  Unless  the  plaintiff 
first  attempted  forcibly  to  take  the  coal, 
of  which  there  was  no  proof.  I  think  the 
evidence  was  immaterial,  and  was  prop- 
erly overi-uled. 
New  trial  denied. 


tacked  defendant,  and  gave  him  several 
serious  blows  on  and  about  the  head  and 
face;  and  that,  in  the  course  of  this  en- 
counter, defendant  shot  Grady  with  a  pis- 
tol, inflicting  a  wound  from  the  effects  of 
which  Grady  died.  Defendant  requested 
the  judge  to  instruct  the  jury  that,  if  de- 
fendant had  reason  to  believe  that  Grady 
intended  to  do  him  great  bodily  havm, 
and  had  reason  to  believe  he  was  in  dan- 
ger of  great  bodily  harm,  he  would  be  jus- 
tified in  defending  himself  by  shf)Oting  his 
assailant.  The  judge  gave  the  instruction 
requested,  but  inserted  after  the  words, 
"danger  of  great  bodily  harm,"  and  before 
the  words,  "he  would  be  justified  "  the 
words,  "which  no  other  means  could  ef- 
fectually prevent."  The  jury  returned  a 
verdict  of  guilty,  and  the  defendant  al- 
leged exceptions. 

G.  Maraton,  Atty.  Gen.,  for  the  Com- 
monwealth. G.  F.  Verry  and  J.  W.  Cor- 
coran, for  defendant. 

Gray,  C.  J.  According  to  the  manifest 
intent  and  natural  meaning  of  the  instrue- 
tion  given  to  the  jury,  the  qualification, 
"if  the  defendant  had  reason  to  believe," 
applied  to  the  clause,  "which  no  other 
means  could  effectually  prevent,"  as  well 
as  to  the  rest  of  the  proposition  laid  down 
by  the  court.  In  legal  effect,  as  in  com- 
mon understanding,  the  instruction  was 
that  if  thedefendant  had  reason  to  believe 
that  his  assailant  intended  to  do  him 
great  bodily  harm,  and  that  he  was  in 
danger  of  such  harm,  which,  as  he  had 
reason  to  believe,  no  other  means  could 
effectually  prevent,  he  would  be  justified  in 
defending  himself  by  shooting  him.  Anj'- 
thing  less  than  this  would  clearly  afford 
no  justification.  Trial  of  Selfridge,  IfiO; 
Com.  V.  Woodward,  102  Mass.  15.^,  161. 
The  suggestion  in  argument  that  the  in- 
struction excluded  all  other  means  of  self- 
defense  which  might  result  in  the  death  of 
the  assailant  than  shooting  is  a  strained 
interpretation,  which  there  is  nothing  in 
the  bill  of  exceptions  to  show  could  have 
been  applied  to  the  evidence  before  the  jury. 

Exceptions  overruled. 

(See,  also,  as  to  self-defense,  Shorter  v.  People,  2  N.  Y.  193;  Panton  v.  People,  114  111.  505,  2  N. 
E.  Rep.  411 ;  Marts  v.  State,  26  Ohio  St.  163.  As  to  defense  of  brother,  State  v.  Greer,  22  W.  Va.  800. 
As  to  defense  of  one's  land,  Com.  v.  Clark,  2  Mete.  (Mass.)  23;  Kiff  v.  Youmans,  86  N.  Y.  324;  Souter 
v.  Codman,  14  R.  I.  119.  As  to  defense  of  one's  home,  State  v.  Middleham,  62  Iowa,  150, 17  N.  W.  Rep. 
44f>;  State  v.  Peacock,  40  Ohio  St.  333.  As  to  defense  of  chattels,  People  v.  Dann,  53  Mich.  490,  19  N. 
W.  Rep.  159.) 


(131  Mass.  423.) 

Commonwealth  v.  O'Malley. 

{Supreme  Judicial  Court  of  Massachusetts. 
Oct.   11,  1881.) 

Justifiable  or  Excusable  Assault— Self-De- 
FEXSE — Killing  Assailant. 
A  person  attacked  is  justified  in  defending  him- 
self by  shooting  his  assailant,  if  he  has  reason 
to  believe  that  the  assailant  intends  to  do  him 
great  bodily  harm,  and  that  he  is  in  danger  of 
such  harm,  and  that  no  other  means  can  effect- 
ually prevent  it. 

Exceptions  from  superior  court. 

Indictment  against  William  O'Malley  for 
the  manslaughter  of  Malachi  Gradj'.  At 
the  trial  it  appeared  that,  previous  to  the 
killing  of  Grady,  he  and  defendant  had  had 
a  dispute,  and  Grady  had  made  threats 
against  defendant;  that,  on  the  morning 
of  the  day  on  which  the  killing  occurred, 
there  were  further  angry  words  between 
them  aliout  the  same  matter  at  defend- 
ant's house;  that  Grady  left  the  house, 
and,  a  few  hours  afterwards,  they  met  on 
the  street;  that   Grady  then  violently  at- 


(148  Mass.  529,  20  N.  E.  Rep.  171.) 

Commonwealth  v.  Donahue. 

{Supreme  Judicial  Court  of  Massachusetts. 
Feb.  28,  1889.) 

Justifiable  or  Excusable  Assault  —  Defense 
OF  Property. 
One  whose  property  is  taken  wrongfully  by  an- 
other may  retake  it  from  him,  using  reasonable 
force.  What  is  such  force  is  a  question  of  fact 
for  the  jury. 

Exceptions  from  superior  court,  Frank- 
lin county. 

Indictment  against  Thorn  as  Donahue  for 
robbery.  Defendant  was  convicted  of  as- 
sault, and  alleged  exceptions. 

John    Mcllveue,    for    defendant.     A.    J. 


Waterman,  Atty.  Gen.,  for  the  Common- 
wealth. 

Holmes,  J.  This  is  an  indictment  for 
robbery,  in  which  the  defendant  has  been 
found  guilty  of  an  assault.  The  evidence 
for  the  commonwealth  was  that  the  de- 
fendant had  bought  clothes  amounting  to 
$21. .55  of  one  Mitchelman,  who  called  at 
the  defendant's  house  by  appointment  for 
his  pay;  thatsomediscussion  arose  about 
the  bill,  and  that  the  defendant  went  up 
stairs,  brought  down  the  clothes,  placed 
them  on  a  chair  and  put  $20  on  a  table, 
and  told  Mitchelman  that  he  could  have 
the  money  or  the  clothes;  that  Mitchel- 
man took  the  money,  and  put  it  in  his 
pocket,  and  told    the  defendant  he  owed 


78 


LAW  OF  TORTS. 


him  fl.55,  whereupon  the  defendant  de- 
manded his  money  baclc,  and,  on  Mitchel- 
man  refusing,  attacl^ed  him,  threw  him 
on  the  floor,  and  choked  him,  until  Mitch- 
elman  gave  him  a  pocket-book  containing 
^29.  The  defendant's  counsel  denied  the 
receiving  of  the  pocket-book,  and  said  that 
he  could  show  that  the  assault  was  jus- 
tifial)!e  under  thecircumstances  of  the  case, 
as  tlie  defendant  believed  that  he  liad  a 
right  to  recover  his  own  money  by  force, 
if  necessary.  The  presiding  justice  stated 
that  he  should  be  obliged  to  rule  that  the 
defendant  would  not  be  justified  in  as- 
saultiag  Miiclielman  to  get  his  own 
money,  and  that  he  should  rule  as  follows: 
"If  the  jury  are  satisfied  that  thp  defend- 
ant choked  and  otherwise  assaulted  Mitch- 
elnian,  they  would  be  warranted  in  find- 
ing the  defendant  guilty,  although  the 
sole  motive  of  the  defendant  was  by  this 
violence  to  get  from  Mitchelman  by  force 
rnone^'  which  the  defendant  honestly  be- 
lieved to  be  his  own. "  Upon  this  the  de- 
fendant saved  his  exceptions,  and  declined 
to  introduce  evidence.  The  jury  were  in- 
structed as  stated,  and  found  the  defend- 
ant guilty. 

On  the  evidence  for  the  commonwealth, 
it  appeared,  or,  at  the  lowest,  the  jury 
miglit  have  found,  that  the  defendant 
offered  the  $20  to  Mitchelman  only  on 
condition  that  Mitchelman  should  accept 
that  sum  as  full  payment  of  his  disputed 
bill,  and  that  Mitchelman  took  the  money, 
and  at  the  same  moment,  or  just  after- 
wards, as  part  of  the  same  transaction, 
repudiated  The  condition.  If  this  was  the 
case,  since  Mitchelman,  of  course,  what- 
ever the  sum  due  him,  had  no  right  to 
that  particular  money  except  on  the  con- 
ditions on  which  it  was  offered,  (Com.  v. 
Stebbins.  8  Gray,  492,)  he  took  the  money 
wrongfully  from  the  possession  of  the  de- 
fendant; or  the  jury  might  have  found 
that  he  did,  whether  the  true  view  be  that 
the  defendant  did  not  give  up  possession, 
or  that  it  was  obtained  from  him  byMitch- 
elman's  fraud,  (Com.  v.  Devlin,  141  Mass. 
428,  481,  6  N.  E.  Kep.  64;  Chiffer's  Case,  T. 
Ravm.  27.5.  276;  Reg.  v.  Thompson,  Leigh 
&  C.  225;  Reg.  V.  Slowly,  12  Cox,  Crim.  Cas. 
2G9;  Reg.  v.  Rodwav.  9Car.  &  P.  784;  Rex 
V.  Williams,  6  Car.  &  P.  390;  2  East,  P. 
C.  c  10.  §§  110-113.)  See  Reg.  v.  Cohen. 
2  Denison,  Cr.  Cas.  249,  and  cases  infra. 
The  defendant  made  a  demand,  if  that  was 
necessary, — which  we  do  not  implj', — be- 
fore usingforce.  Green  v.  Goddard,  2  Salk. 
641;  Polkinhorn  v.  Wright,  8  Q.  B.  (N.  S.) 
197;  Com.  v.  Clark,  2  Mete.  (Mass.)  28,  25; 
and  cases  infra.  It  is  settled  by  ancient 
and  modern  authority  that  under  such 
circumstances  a  man  may  defend  or  regain 
his  momentarily  interrupted  possession  by 
the  use  of  reasonable  force,  short  of  wound- 
ing, or  the  employment  of  a  dangerous 
weapon.  Com.  v.  Lynn.  123  Mass.  218;  Com, 
V.  Kennard.8Pick.138;  Anderson  v.  State, 
6  Baxt.  608;  State  v.  Elliot,  11  N.  H.  540, 
545;  Rex  v.  Milton, Moody  &  M.  107;  Y.  B. 
9  Edw.  IV.  28,  pi.  42;  19  Hen.  VI.  31,  pi.  59; 
21  Hen.  VI.  27,  pi.  9.  See  Seaman  v.  Cup- 
pledick,  Owen,  150;  Taylor  v.  Markham, 
Cro.  Jac  224.  Yelv.  157,  1  Brown.  &  G.  215; 
Shingleton  v.  Smith,  Lutw.  1481,  1483; 
2  Inst.  316;  Finch,  Law,  203;  2  Hawk.  P. 


C.  c.  60,  §  23;  3  Bl.  Comm.  121.  To  thia 
extent  the  right  to  protect  one's  posses- 
sion has  been  regarded  as  an  extension  of 
the  right  to  protect  one's  person,  with 
which  it  is  generally  mentioned.  Baldwin 
v.  Hayden,  6  Conn.  453;  Y.  P..  19  Hen.  VI. 
31.  pi.  59;  Rogers  v.  Spence.  18  Mees.  &  W, 
571,  581;  2  Hawk.  P.  C.  c.  60,  §23;  3  Bl. 
Comm.  120,  131. 

We  need  not  consider  whether  this  ex- 
planation is  quite  adequate.  There  are 
weiglity  decisions  which  go  further  than 
those  above  cited,  and  which  hardly  can 
stand  on  the  right  of  self-defense,  but  in- 
volve other  considerations  of  policy.  It 
has  been  held  that  even  where  a  consider- 
able time  had  elapsed  betwee^i  the  wrong- 
ful taking  of  the  defendant's  property  and 
the  assault,  the  defendant  had  a  right  to 
regain  possession  by  reasonable  force, 
after  demand  upon  the  third  person  in 
possession,  in  like  manner  as  he  might 
have  protected  it  without  civil  liability. 
Whatever  the  true  rule  may  be,  probably 
there  is  no  difference  in  this  respect  be- 
tween the  civil  and  the  criminal  law. 
Blades  v.  Higgs,  10  C.  B.  (N.  S.)  713,  12  C. 
B.  (N.  S.)  501,  13  C.  B.  (N.  S.)  844,  11  H.  L. 
Cas.  621 ;  Com.  v.  McCue,  16  Gray.  226,  227. 
The  principle  ha.^  been  extended  to  a  case 
where  the  defendant  had  yielded  posses- 
sion to  the  person  assaulted,  through  the 
fraud  of  the  latter.  Hodgeden  v.  Hub- 
bard. 18  Vt.  504.  See  Johnson  v.  Perry, 
.56  Vt.  703.  On  the  other  hand,  a  distinc- 
tion has  been  taken  between  the  right  to 
maintain  possession  and  the  right  to  re- 
gain it  from  another  who  is  peaceably  es- 
tablished in  it,  although  the  possession  of 
the  latter  is  wrongful.  Bobb  v.  Bos  worth, 
Litt.  Sel.  Cas.  81.  See  Bai'nes  v.  Martin, 
15Wis.240;  Andre  v.  Johnson, 6Blackf.  375; 
Davis  V.  Whitridge,  2  Strob.  282;  3  Bl. 
Comm.  4.  It  is  unnecessary  to  decide 
wliether  in  this  case,  if  Mitchelman  had 
taken  the  mon"v  with  a  fraudulent  intent, 
but  had  not  repudiated  the  condition  un- 
til afterwards,  the  defendant  would  have 
had  any  other  remedy  than  to  hold  him 
to  his  bargain,  if  he  could,  even  if  he  knew 
that  Mitchelman  still  had  the  identical 
money  upon  his  person.  If  the  force  used 
by  the  defendant  was  excessive,  the  jury 
would  have  been  warranted  in  finding  him 
guiltj'.  Whether  it  was  excessive  or  not 
was  a  question  for  them  ;  the  judge  could 
not  rule  that  it  w^as  not,  as  matter  of  law. 
Com.  V.  Clark,  2  Mete.  (Mass.)  23.  There- 
fore the  instruction  given  to  them,  taken 
only  literally,  was  correct.  But  the  pre- 
liminary statement  went  further,  and  was 
erroneous;  and,  coupling  that  statement 
with  the  defendant's  offer  of  proof,  and  his 
course  after  the  rulings,  we  think  it  fair 
to  assume  that  the  instruction  was  not 
understood  to  be  limited,  or  indeed  to  be 
directed,  to  the  case  of  excessive  force, 
which,  so  far  as  appears,  had  not  been 
mentioned,  but  that  it  was  intended  and 
understood  to  mean  that  any  assault  to 
regain  his  own  money  would  warrant 
finding  the  defendant  guilty.  Therefore 
the  exceptions  must  be  sustained. 

It  will  be  seen  that  our  decision  is  irre- 
spective of  the  defendant's  belief  as  to 
what  he  had  a  right  to  do.  If  the  charge 
of  robbery  had   been  persisted  in,  and  the 


ASSAULT  AND  BATTERY. 


79 


-difficulties  whicb  we  have  stated  could 
have  been  got  over,  we  misht  have  had 
to  consider  cases  like  Reg.  v.  Boden.  1  Car. 
&  K.  395.  397;  Reg.  v.  Hemminft's.  4  Fost. 
&  F.  50;  State  v.  Holly  way,  41  Iowa,  200. 
Compare  Com.   v.   Stebbins,  8  Gray,  492; 


Com.  v.  McDuffy,  126  Mass.  467.  There  is 
no  question  here  of  the  effect  of  a  reasona- 
ble but  mistaken  belief  with  regard  to  the 
facts.  State  V.Nash,  SSN.C.  618.  Thefacts 
were  as  the  defendant  believed  them  to  be. 
Exceptions  sustained. 


B.    Rightful  expulsion  by  carrier  of  passengers. 


(43  111.  430.) 

Illinois  Cent.  R.  Co.  ot  aJ.  v.  Whitte- 

MOKE. 

(Supreme  Court  of  Rlinois.    April  Term,  1S67.) 

1.  Justifiable  or  Excusable  Assault — Cakkiers 

— Expulsion  of  Passenger. 
A  rule  of  a  railroad  company  requiring  pas- 
sengers to  surrender  their  tickets  on  the  trains  is 
a  reasonable  regulation,  and,  lor  a  wanton  refusal 
to  comply  therewith,  the  oompany  may  expel  the 
passenger  from  the  train,  using  no  more  force 
than  is  necessary  for  the  purpose,  and  not  selecting 
a  dangerous  or  inconvenient  place. 

2.  Same. 

The  statute  of  Illinois  forbidding  railroad  com- 
panies to  expel  passengers  from  their  trains  for 
non-payment  of  fare,  at  any  place  other  than  a 
regular  station,  does  not  apply  to  such  a  case; 
a  refusal  to  surrender  a  ticket,  for  which  the 
requisite  fare  has  been  paid,  is  not  the  same 
offense  as  a  refusal  to  pay  fare. 

3.  Same— Reasonable  Regulation — Question  op 

Law. 
The  question  whether  a  regulation  of  a  railroad 
company  requiring  passengers  to  surrender  their 
tickets  is  reasonable  is  for  the  court,  either  with 
or  without  testimony  on  the  subject;  to  submit 
it  to  the  jury  is  error. 

Appeal  fromcircuitcourt,  Marshallcoun- 
ty;  Samuel  L.  Richmond,  Judge. 

Williams  if  Burr,  for  appellants.  Inger- 
soll,  FuterhHugli  &  Shaw, lor  appellee. 

Lawrence,  J.  This  was  an  action  of 
trespass,  brought  by  Whittemore  against 
the  Illinois  Central  Railroad  Company  and 
N.  W.  Cole,  a  conductor  in  the  service  of 
the  company,  for  wrongfully  expelling  the 
plaintiff  from  a  traiiL  It  appears  the 
plaintiff  had  taken  passage  from  Decatur 
to  El  Paso,  and  had  procured  the  necessa- 
ry ticket.  After  the  train  passed  Kappa, 
the  staticm  preceding  El  Paso,  the  con- 
ductor demanded  plaintiff's  ticket,  which 
the  latter  refused  to  surrender  without  a 
check.  This  the  conductor  refused  to  give, 
and,  after  some  controversy  with  the 
plaintiff,  stopped  the  train,  and,  with  the 
aid  of  a  brakeman,  expelled  the  plaintiff. 
There  is  considerable  evidence  in  the  rec- 
ord given  for  the  purpose  of  showing  that, 
even  admitting  the  right  of  the  defendants 
to  expel  the  plaintiff,  an  unnecessary  and 
wanton  degree  of  violence  was  used,  from 
which  tl)e  plaintiff  received  a  permanent 
and  severe  injury.  As,  however,  the  case 
must  be  submitted  to  another  jury,  we 
forbear  from  any  comments  on  tl)is  por- 
tion of  it.  The  jury  gave  the  plaintiff  a 
verdict  for  $3,125,  for  which  tiie  court  ren- 
dered judgment,  and  the  defendants  ap- 
pealed. In  sustaining  a  demurrer  to  the 
fourth  plea,  and  in  givingthe  instructions, 
the  circuit  court  held  that,  although  the 
rules  of  the   road   required  the  conductor 


to  take  up  the  plaintiff's  ticket,  and  not- 
withstanding he  may  have  refused  to  sur- 
render it  when  demanded,  the  defendants 
had  no  right  to  expel  him  from  the  cars, 
except  at  a  regular  staticjn.  In  support 
of  this  position,  it  is  urged  by  counsel  for 
appellee  that  the  refusal  to  surrender  the 
ticket  was  merely'  equivalent  to  a  refusal 
to  pay  the  fare,  and  that  the  statutory 
prohibition  against  the  expulsion  of  i)as- 
sengers  for  this  cause,  except  at  a  regular 
station,  should  be  applied  to  cases  like  the 
present.  We  held  in  the  case  of  Railroad 
V.  Flagg,  (decided  at  the  January  term, 
1867,  43  III.  304,)  that  the  neglect  to  buy  a 
ticket  before  entering  the  train,  when  re- 
quired by  the  rules  of  the  road,  was  the 
same  thing,  in  substance,  as  the  refusal  to 
pay  the  fare,  and  justified  an  expulsion 
only  at  a  regular  station.  But  the  refusal 
to  surrender  a  ticket,  for  which  the  requi- 
site fare  has  already  been  paid,  is  certainly 
not  the  same  thing  as  refusal  to  pay  the 
fare.  It  may  be  no  worse  offense  against 
the  rights  of  the  railroad  company  than 
the  refusal  to  pay  the  fare,  but  it  is  not 
the  same  offense.  Perhaps  there  was  no 
good  reason  why  the  legislature  should 
have  forbidden  railways  to  expel  a  pas- 
senger only  at  a  regular  station  for  the 
non-payment  of  fare,  and  have  left  them 
at  liberty  to  expel  one  at  any  other  point, 
for  the  disregard  of  any  other  reasonable 
rule.  But  it  has  done  so,  and  it  is  our  du- 
ty to  leave  the  law  as  the  legislature 
thought  proper  to  establish  it.  What, 
then,  is  the  right  of  a  railway  company  in 
reference  to  its  passengers?  Clearly,  to 
require  of  them  the  observance  of  all  such 
reasonable  rules  as  tend  to  promote  tne 
comfort  and  convenience  of  the  passengers, 
to  preserve  good  order  and  propriety  of 
behavior,  to  secure  the  safety  of  the  train, 
and  to  enable  the  company  to  conduct  its 
business  as  a  common  carrier,  with  ad- 
vantage to  the  public  and  to  itself.  So 
long  as  such  reasonable  rules  are  obs^erved 
bj-  a  passenger,  the  company  is  bound  to 
carry  him,  but,  if  they  are  wantonly  dis- 
regarded, that  obligation  ceases,  and  the 
companj^  may  at  once  expel  him  from  the 
train,  using  no  more  force  than  may  be 
necessary  for  that  purpose,  and  not  select- 
ing a  dangerous  or  inconvenient  place. 
This  is  a  common-law  right,  arising  from 
the  nature  of  their  contract  and  occupa- 
tion as  common  carriers,  and,  as  already 
remarked,  it  has  been  restricted  by  the 
legislature  only  in  cases  where  the  offense 
consists  in  non-payment  of  fare.  Railroad 
Co.  V.  Parks,  IS  III.  460;  Hilliard  v.  Goold,  34 
N.  H,  230;  Cheney  v  Railroad  Co.,  11  Mete. 
(Mass.)  121.  If,  then,  the  regulation  re- 
quiring passengers  to  surrender  their  tick- 
ets was  a  reasonable  one,  the  ruling  of  the 


80 


LAW  OF  TORTS. 


court  below  on  this  point  was  erroneous. 
That  the  rule  is  a  reasonable  one  really 
admits  of  no  controversy.  It  was  shown 
by  witnesses  on  the  trial,  and  must  be  ap- 
parent to  any  one,  that  the  company  must 
have  the  right  to  require  the  surrender  of 
tickets,  in  order  to  guard  itself  against 
imposition  and  fraud,  and  to  preserve  the 
requisite  method  and  accuracy  in  the 
management  of  its  passenger  department. 
The  circuit  court  left  it  to  the  jury  to  say 
whether  the  rule  was  reasonable.  This 
was  error.  It  was  proper  to  admit  testi- 
mony, as  was  done;  but,  either  with  or 
without  this  testimony,  it  was  for  the 
court  to  say  whether  the  regulation  was 
reasonable,  and  therefore  obligatory  upon 
the  passenger.  The  necessity  of  holding 
this  to  be  a  question  of  law,  and  therefore 
within  tjje  province  of  the  court  to  settle, 
is  apparent  from  the  consideration   that 


it  is  only  by  so  holding  that  fixed  and  per- 
manent regulations  can  be  established. 
If  this  question  is  to  be  left  to  juries,  one 
rule  would  be  applied  by  them  to-day  and 
another  to-morrow.  In  one  trial  a  rail- 
way would  be  held  liable,  and  in  another, 
presenting  the  same  question,  not  liable. 
Neither  the  companies  nor  passengers 
would  know  their  rights  or  their  obliga- 
tions. A  fixed  system  for  the  control  of 
the  vast  interests  connected  with  rail- 
ways would  be  impossible,  while  such  a 
system  is  essential  equally  to  the  roads 
and  to  the  public.  A  similar  view  has  re- 
cently been  taken  of  this  question  in  the 
case  of  Vedder  v.  Fellows,  20  N.  Y.  Il26. 
The  judgment  must  be  reversed  ;  but  if  it 
appears,  upon  another  trial,  that  unneces- 
sary violence  was  used,  the  defendants 
must  respond  in  damages. 
Judgment  reversed. 


(See,  also,  Pease  v.  Railroad  Co.,  101  N.  Y.  367,  5  N.  E.  Rep.  37;  Murdock  v.  Railroad  Co.,  137  Mass. 
293;  State  v.  Goold,  53  Me.  2T9;  Steam-Boat  Co.  v.  Bcockett,  121  U.  S.  637,  7  Sup.  Ct.  Rep.  1039;  Sanford 
V.  Railroad  Co.,  23  N.  Y.  343;  Sullivan  v.  Railroad  Co.,  14S  Mass.  119,  18  N.  E.  Rep.  678;  Jardine  V.Cor- 
nell, 50  N.  J.  Law,  485,  14  At).  Rep.  590;  Railroad  Co.  v.  Skillman,  39  Ohio  St.  444.) 


C.   Discipline  of  children,  pupils,  etc. 


(53  Conn.  4S1,  2  Atl.  Rep.  841.) 

Sheehan  v.  Sturoes. 

(Supreme  Court  of  Errors  of  Connecticut.    Nov. 
24,  1885. ) 

1.  Justifiable  or  Excusable  Assault — Schools 

—  Punishment  of  Pupil. 
A  teacher  may  inflict  corporal  punishment  on  a 
pupil,  if  necessary  to  enforce  compliance  by  the 
pupil  with  proper  rules  for  the  good  conduct  and 
order  of  the  school;  but  he  must  exercise  sound 
discretion  and  judgment,  and  the  punishment 
should  be  adapted,  not  only  to  the  offense,  but  to 
the  offender. 

2.  Same— Action   for    Assault   and  Battery — 

Question  of  Fact. 
In  an  action  against  a  teacher   for  an  assault 
and  battery  in  whipping  a  pupil,  the  extent  and 
reasonableness  of   the  punishment  is    purely  a 
question  of  fact. 

3.  Same— Evidence. 

In  such  an  action,  evidence  of  habitual  miscon- 
duct of  the  pupil  prior  to  the  punishment  is  ad- 
missible on  behalf  of  defendant. 

Appeal  from  superior  court,  Fairfield 
county;  Beardsley,  Judge. 

Action  for  assault  and  battery.  Judg- 
ment was  rendered  for  defendant.  Plain- 
tiff appealed  from  the  judgment. 

John  S\  Seymour,  for  appellant.  John 
H.  Perry  a.n<l  Winthrop  H.  Perry,  for  ap- 
pellee. 

Granger,  J.  This  is  a  complaint  for  an 
assault  and  battery.  The  defense  is  that 
the  plaintiff  was  at  the  time  a  pupil  in  a 
school  kept  bj  the  defendant;  that  he 
willfully  violated  the  reasonable  rules  of 
the  schof)l,  and  disobeyed  the  reasonable 
commands  of  the  defendant  as  his  teach- 
er; and  that  for  this  misconduct  the  de- 
fendant, as  such  teacher,  whipped  him  in 
a  reasonable  manner.  The  sole  contro- 
versy upon  the  trial  was  as  to  the  reason- 
ableness of  the  punishment  inflicted.  The 
court  found  that  "such  whipping  was 
not  unreasonable  or  excessive,  and   was 


fully  justified  by  the  plaintiff's  misconduct 
at  that  time."  The  extent  and  reasona- 
bleness of  the  punishment  administered 
by  a  teacher  to  his  pupil  is  purely  a  ques- 
tion of  fact.  This  is  too  well  settled  lo 
make  the  citation  of  authorities  necessa- 
ry. The  finding  of  the  court,  tiierefore, 
settles  the  question  as  to  this,  unless  the 
court  acted  upon  improper  evidence. 

The  plaintiff  testified  as  a  witness  in 
his  own  behalf,  and  on  his  cross-examina- 
tion the  defendant,  against  the  objection 
of  the  plaintiff's  counsel,  was  allowed  to 
ask  him  whether,  on  two  former  occasions, 
both  of  them  more  than  a  week  before  the 
whipping  in  question,  he  had  not  assault- 
ed the  teacher  while  he  was  chastising 
him.  And  the  defendant  afterwards  in  his 
testimony  in  his  own  behalf  was  allowed, 
against  the  objection  of  the  plaintiff,  to 
state  that  the  plaintiff's  conduct  in  school 
was  habitually  bad,  and  that  on  two  for- 
mer occasions,  one  of  them  about  two 
weeks  and  the  other  seven  r)r  eight  days 
before  the  whipping  in  question,  the  plain- 
tiff had  assaulted  him  while  he  was  chas- 
tising him.  The  defendant  was  also  al- 
lowed, on  the  plaintiff's  cross-examina- 
tion, against  objection,  to  inquire  of  him 
whether  he  had  not,  seven  or  eight  days 
before  the  whipping  in  question,  put 
stones  in  his  pocket,  and  declared  that 
he  was  going  to  attack  the  teacher  with 
them.  The  plaintiff,  in  answer  to  the  in- 
quiry, denied  that  he  had  dcme  so;  and 
the  defendant,  against  the  plaintiff's  ob- 
jection, was  allowed  to  show  by  a  wit- 
ness that  the  plaintiff  had  so  done.  The 
defendant  did  not  inform  the  plaintiff,  at 
the  time  of  the  whipping,  that  he  was 
punishing  him  for  his  past  and  habitual 
misconduct.  We  think  that  the  court 
committed  no  error  in  admitting  the  in- 
quiries and  evidence.  The  right  of  the 
school-master  to  require  obedience  to  rea- 
sonable rules  and  a  proper  submission  to 


ASSAULT  AXD  BATTERY. 


81 


his  aiitliority.  and  to  inflict  corporal  pnn- 
islimont  for  disobedience,  is  well  settled. 
It  is  said  in  tlie  Encyclopedia  of  Educa- 
tion, edited  by  Kiddle  &  ISchem,  page 
189,  that  "the  school  codes  of  the  United 
States  are  generally  silent  in  regard  to  the 
right  of  teachers  to  iuliict  corporal  pun- 
ishment, and  there  are  numerous  judicial 
decisions  in  favor  of  this  right.  By  En- 
glish and  American  law  a  parent  may  cor- 
rect his  child  in  a  reasonable  manner,  and 
the  teacher  is  in  loco  parentis;"  citing  2 
Kent,  Comm.  203;  1  Bl.  Conim.  453;  Com. 
V.  Randall,  4  Gray,  36;  State  v.  Render- 
grass,  2  Dev.  &  B.  3(55;  Stevens  v.  Fassett, 
27  Me.  2S0;  Lander  v.  Seaver,  32  Vt.  123. 
As  incident  to  this  relationship,  it  is  the 
right  of  the  teacher,  in  the  absence  of  rules 
established  by  the  school  board  or  other 
proper  authoritj',  to  make  all  necessary 
and  proper  rules  for  the  g(Jod  conduct  and 
order  of  the  school;  and  it  is  his  duty  to 
Bee  that  order  is  maintained  and  the  rules 
observed;  and  if  any  scholar  violates  the 
rules,  and  disobej's  the  orders  of  the  teach- 
er, it  is  the  duty  of  the  latter  to  enforce 
compliance,  and  to  that  end  it  may  be 
necessar^^  to  inflict  personal  chastisement, 
as  without  it  he  miirht  lose  all  control  of 
the  school.  In  inflicting  such  punishment 
the  teacher  must  exercise  sound  discretion 
and  judgment,  and  must  adapt  it,  not  on- 
ly to  the  offense,  but  to  the  offender. 
Horace  Mann,  a  high  authority  in  the 
matter  of  schools,  says  of  corporal  pun- 
ishment :  "  It  should  be  reserved  for  baser 
faults.  It  is  a  coarse  remedy,  and  should 
be  employed  upon  the  coarse  sins  of  our 
animal  nature,   and,    when  employed  at 


all,  should  be  administered  in  strong 
doses."  Of  course  the  teacher,  in  inflicting 
such  punishment,  must  not  exceed  the 
bounds  of  moderation.  No  precise  rule 
can  be  laid  down  as  to  what  shall  be  con- 
sidered excessive  or  unreasonable  punish- 
ment. Reeve,  Dom.  Rel.  288.  Each  case 
must  depend  upon  its  own  circumstances. 
In  Com.  V.  Randall.  4  Gray,  36,  it  is  held 
that  "in  inflicting  corporal  punishment  a 
teacher  must  exercise  reasonable  judgment 
and  discretion,  and  be  governed  as  to  the 
mode  and  severity  of  the  punishment  by 
the  nature  of  the  offense,  and  the  age,  size, 
and  apparent  powers  of  endurance  of  the 
pupil."  And  we  think  it  equally  clear  that 
he  should  also  take  into  consideration 
the  mental  and  moral  qualities  of  the  pu- 
pil ;  and,  as  indicative  of  these,  his  general 
behavior  in  school  and  his  attitude  to- 
wards his  teacher  become  proper  subjects 
of  consideration.  We  think,  therefore, 
that  the  court  acted  properly  in  admit- 
ting evidence  of  the  prior  and  habitual 
misconduct  of  the  plaintiff,  and  that  it 
was  perfectly  proper  for  the  defendant,  in 
chastising  him,  to  consider,  not  merely  the 
immediate  offense  which  had  called  for 
the  punishment,  but  the  past  offenses  that 
aggravated  the  present  one,  and  showed 
the  plaintiff  to  have  been  habitually  re- 
fractory and  disobedient.  Nor  was  it  nec- 
essary that  the  teacher  should,  at  the  time 
of  inflicting  the  punishment,  remind  the 
pupil  of  his  past  and  accumulating  of- 
fenses. The  pupil  knew  them  well  enough, 
without  having  them  brought  freshly  to 
his  notice.  There  is  no  error. 
The  other  judges  concurred. 


(See,  also,  Patterson  v.  Nutter,  7S  Me.  509,  7  Atl.  Rep.  273;  DanentiofEer  v.  State,  69  Ind.  29.5.  As 
to  punishment  by  parents,  see  State  v.  Jones,  95  N.  C.  5Sb ;  by  masters  of  vessels  upon  seamen,  Browp 
V.  Howard,  14  Johns.  119.) 


D.   Act  of  public  officer  in  performance  of  official  duty. 


(20  Barb.  16.) 

Hager  et  al.  v.  Danforth. 

(Siipreme  CouH  of  Nerv  York.     Albany,  Gren- 
eral  Term.     Sept.  4,  1S54. ) 

Justifiable  or  Excusable  Assault — Service  of 
Process. 
Defendant  went  to  the  house  of  plaintiffs,  who 
were  husband  and  wife,  to  serve  on  the  husband, 
who  was  in  the  house,  a  subpoena  in  a  suit  then 
pending,  and,  finding  a  door  open,  entered  peace- 
ably; but  the  wife  ordered  him  out,  and  resisted 
him  in  attempting  to  proceed  to  the  stairs,  in 
search  for  the  husband,  although  he  told  her  he 
had  a  subpoena  to  serve.  Held,  that  defendant 
was  in  the  house  under  a  legal  license,  and  it 
was  not  his  dutj-  to  leave  when  ordered  to  do  so 
by  the  wife;  and  that  he  had  a  right  to  use  such 
force  as  was  necessary  to  overcome  her  unlawful 
resistance  to  the  service  of  the  subpoena,  and  was 
liable  only  for  any  excess  of  violence  used  by 
him. 

Appeal  from  special  term. 

Action  by  Daniel  J.  Hager  and  wife  for 
an  assault  and  battery  alleged  to  have 
been  committed  upon  the  wife  by  defend- 
ant. It  ajjpeared  that  a  ijrevious  action 
had  been  brought  before  a  justice  of  the 
peace  by  Danforth,  the  defendant  in  this 
action,  against  the  plaintiff  Daniel  J.  Ha- 
CHASE — 6 


ger;  that  on  the  day  on  which  that  action 
was  to  be  tried,  Danforth,  having  pro- 
cured from  the  justice  a  subpoena  for  Ha- 
ger as  a  witness  therein,  went  to  Hager's 
house  for  the  purpose  of  serving  it;  that 
he  found  a  door  open,  and  entered,  but 
was  met  and  resisted  by  Mrs.  Hager,  who 
ordered  him  out  of  the  house;  that  Dan- 
forth replied  to  her  that  he  had  a  subpoena 
to  serve  on  Hager,  and,  Hager  being  up- 
stairs at  the  time,  Danforth  attempted  to 
force  his  way  to  the  stairs,  against  the 
resistance  of  Airs.  Hager,  and  in  doing  so 
choked  her  and  threw  her  back  against  the 
catch  of  a  door,  slightly  bruising  her; 
and  that  thereafter  Hager  came  down- 
stairs, and  Danforth  then  served  the  sub- 
poena upon  him,  and  soon  after  left  the 
house.  The  judge  charged  the  jury  that 
a  license  to  enter  the  house  for  the  pur- 
pose of  serving  the  subpoena  was  implied, 
but  that  "after  Mrs.  Hager  had  ordered 
the  defendant  out  the  subpcena  was  not  a 
justification  or  protection  to  him  in  press- 
ing forward,  and,  when  resisted  in  his  ad- 
vance, using  force  to  serve  it."  To  this 
part  of  the  charge  defendant  excepted. 
The  jury  found  a  verdict  for  plaintiffs 
for  ^250.     Defendant  moved  upon  a  cas« 


52 


LAW  OF  TORTS. 


for  a  new  trial,  which  motion  was  denied, 
and  from  the  order  denying  a  new  trial 
defendant   appealed   to  the  general  term. 

Before  Wright,  Harris,  and  Watson, 
Justices. 

H.  Hogeboom,  for  appellant.  L.  Tre- 
main,  for  respondents. 

Harris,  J.  The  defendant  went  to  the 
plaintiffs'  house  with  process  which  he 
was  authorized  by  law  to  serve.  2  Rev. 
St.  p.  240,  §  82.  The  person  upon  whom  he 
was  to  make  the  service  was  in  the  house. 
These  facts  amounted  to  a  legal  license, 
and  having  found  the  door  open,  and  en- 
tered peaceably,  the  defendant  was  law- 
fully there.  Deriving  his  authority  to  be 
there  from  the  law,  and  not  from  the  con- 
sent of  the  plaintiffs,  he  was  under  no  ob- 
ligation to  obey  Mrs.  Hager  when  she 
ordered  him  to  leuve.  Not  having  con- 
ferred upon  him  his  license,  she  had  no 
power  to  revoke  it.  He  was  as  I'ightfully 
there  after  he  had  been  directed  to  leave 
as  before.  I  know  of  no  duty  which 
bound  him  to  desist  from  the  executit)n 
of  the  lawful  purpose  which  had  brought 
him  there.  If  his  taste  led  him  to  encoun- 
ter the  vituperation  and  violence  of  such 
a  woman  as  he  met  there,  it  was  his 
right  to  do  so.  To  the  extent,  therefore, 
that  the  force  used  by  the  defendant  was 
necessary  to  overcome  the  unlawful  re- 
sistance he   met  in  the  service  of   the  sub- 

(Compare  Hull  v.  Bartlett,  49  Conn.  64.) 


pcEna,it  was  lawful.  Mrs.  Hager  was  th» 
wrong-doer,  and  not  the  defendant.  If  he 
used  more  force  than  was  necessary  to 
enable  him  to  accomplish  his  purpose,  to 
that  extent  he  is  liable  as  a  wrong-doer. 
The  jui*y  were  led  to  understand,  upon 
the  trial,  that,  after  Mrs.  Hager  had  or- 
dered the  defendant  out,  the  subpoena  fur- 
nished him  no  justification  or  protection. 
In  effect,  they  were  instructed  that,  by  re- 
maining after  having  been  ordered  to 
leave,  the  defendant  became  a  trespasser. 
In  this  they  were  misled,  and  the  result 
was  a  verdict  against  the  defendant  to  an 
amount  entirely  unwarranted  by  the  evi- 
dence. The  jury  ought  to  have  been  told 
that,  inasmuch  as  the  defendant  had  en« 
tered  the  house  in  a  peaceable  manner, 
under  a  license  given  him  by  law,  he  had 
a  right  to  remain  there  until  he  had  effect- 
ed the  service  of  the  subpoena;  that  Mrs. 
Hager,  by  resisting  the  defendant  in  mak- 
ing such  service,  was  herself  guilty  of  an 
unlawful  act;  and  that  the  defendant 
was  justified,  notwithstandingsuch  resist- 
ance, in  using  all  the  force  necessary  to 
enable  him  to  serve  the  subpoena ;  and 
that  he  was  only  liable  for  any  excess  of 
violence  used  by  him  more  than  was  nec- 
essary to  overcome  the  resistance  with 
which  he  met.  I  am  of  opinion,  therefore, 
that  the  order  of  the  special  term  should 
be  reversed,  and  that  a  new  trial  should 
be  granted,  with  costs  to  abide  the  event. 


FALSE   IMPRISONMENT. 


What  constitutes  false  imprisonment. 


(7  Adol.  &  E.   [N.  S.]  *742.) 

Bird  v.  Jones. 

{Court  of  Queen'' s  Bench.    July  9,  1845.) 

False  Imprisoxmest  —  What  Cox'stitutes  Im- 
prisonment. 
Plaintiff,  attempting  to  pass  in  a  particular  di- 
rection along  part  of  a  public  highway  which  had 
been  inclosed  by  defendant,  was  obstructed  by 
the  latter,  who  prevented  him  from  proceeding 
in  that  direction,  but  left  him  at  liberty  to  go  in 
another  direction.  Held,  that  there  was  no  im- 
prisonment on  which  plaintiff  could  maintain  an 
action  for  false  imprisonment.  Dexman,  C.  J., 
dissenting. 

Rule  nisi  for  new  trial. 

Action  of  trespass  for  assault  and  false 
imijrisonment.  At  the  trial,  before  Den- 
MAX,  C.  J.,  the  jury  found  a  verdict  for 
plaintiff.  Defendant  obtained  a  rule  nisi 
for  a  new  trial,  on  the  ground  of  misdirec- 
tion, consisting  of  a  statement  by  the 
chief  justice  to  the  jury  at  the  trial  that 
an  imprisonment  of  plaintiff  had  taken 
place  before  plaintiff  assaulted  defendant. 

Piatt,  Humfrey  &  Hunce,  showed  cause. 
Sir  F.  TLesiger,  Sol.  Gen.,  in  support  of 
the  rule. 


Coleridge,  J.  In  this  case,  in  which  we 
have  unfortunately  been  unable  to  agree 
in  our  judgment,  I  am  now  to  pronounce 
the  opinion  which  I  have  formed;  and  I 
shall  be  able  to  do  so  very  briefly,  because, 
having  had  the  opportunity  of  reading  a 
judgment  prepared  by  my  Brother  Pat- 
TESON,  and  entirely  agreeing  with  it,  I 
may  content  myself  with  referring  to  the 
statement  he  has  made  in  detail  of  those 
preliminary  points  in  which  we  all,  I  be- 
lieve, agree,  and  which  bring  the  case  up 
to  that  point  upon  which  its  decision  must 
certainly  turn,  and  with  regard  to  which 
ourdifferenceexists.  This  point  is  whether 
certain  facts,  which  may 'be  taken  as  clear 
upon  the  evidence,  amount  to  an  imprison- 
ment. These  facts,  stated  shortly,  and  as  I 
understand  them,  are,  in  effect,  as  follows: 

A  part  of  a  public  high  way  was  inclosed, 
and  appropriated  for  spectators  of  a 
boat-race,  paying  a  price  for  their  seats. 
The  plaintiff  was  desirous  of  entering  this 
part,  and  was  opposed  by  the  defendant; 
but,  after  a  struggle,  during  which  a 
momentary  detention  of  his  person  took 
place,  he  succeeded  in  climbing  over  tha 


FALSE  IMPRISONMENT. 


83 


inclosure.  Two  policemen  were  then  sta- 
tioned by  the  defendant  to  prevent,  and 
they  did  prevent,  him  from  passing  on- 
wards in  thedirection  in  which  hedeclared 
his  wish  to  go;  but  he  was  allowed  to  re- 
main unmolested  where  he  was,  and  was 
at  liberty  to  go,  and  was  told  that  he 
was  so,  in  the  only  other  direction  by 
which  he  could  pass.  This  he  refused  for 
some  time,  and,  during  that  time,  remained 
where  he  had  thus  placed  himself. 

These  are  the  facts,  and,  setting  aside 
those  which  do  not  properly  bear  on  the 
question  now  at  issue,  there  will  remain 
these:  That  the  plaintiff,  being  in  a  pub- 
lic highway  and  desirous  of  passing  along 
it,  in  a  particular  direction,  is  prevented 
from  doing  so  by  the  orders  of  the  defend- 
ant, and  that  the  defendant's  agents  for 
the  purpose  are  policemen,  from  whom, 
indeed,  no  unnecessary  violence  was  to  be 
anticipated,  or  such  as  they  believed  un- 
lawful, yet  who  might  be  expected  to  ex- 
ecute such  commands  as  they  deemed  law- 
ful, with  all  necessary  force,  however  re- 
sisted. But,  although  thus  obstructed, 
the  plaintiff  was  at  libertj^  to  move  his 
person,  and  go  in  any  other  direction,  at 
his  free  will  and  pleasure,  and  no  actual 
force  or  restraint  on  his  person  was  used, 
unless  the  obstruction  before  mentioned 
amounts  to  so  much.  I  lay  out  of  consid- 
eration the  question  of  right  or  wrong  be- 
tween these  parties.  The  acts  will 
amount  to  imprisonment,  neither  more 
nor  less,  from  their  being  wrongful  or 
capable  of  justification.  And  I  am  of 
opinion  that  there  was  no  imprisonment. 
To  call  it  so  appears  to  me  to  confound 
partial  obstruction  and  disturbance  with 
total  obstruction  and  detention.  A  prison 
may  have  its  boundary,  large  or  narrow, 
visible  and  tangible,  or,  though  real,  still 
in  the  conception  only ;  it  may  itself  be 
movable  or  fixed  ;  but  a  boundary  it  must 
have,  and  that  boundary  the  party  im- 
prisoned must  be  prevented  from  passing. 
He  must  be  prevented  from  leaving  that 
place,  within  the  ambit  of  which  the  party 
imprisoning  would  confine  him,  except  by 
prison-breach.  Some  confusion  seems  to 
me  to  arise  from  confounding  imprison- 
ment of  the  body  with  mere  loss  of  free- 
dom. It  is  one  part  of  the  definition  of 
freedom  to  be  able  to  go  whithersoever 
one  pleases.  But  imprisonment  is  some- 
thing more  than  the  mere  loss  of  this  pow- 
er. It  includes  the  notion  of  restraint 
within  some  limits  defined  by  a  will  or 
power  exterior  to  our  own. 

In  Com.  Dig.  "Iniprisonnient,"  (G,)  it  is 
said:  "Every  restraint  of  the  liberty  of  a 
freeman  will  be  an  imprisonment."  For 
this  the  authorities  cited  are  2  Inst.  482; 
Herbert  and  Stroud's  Case.  Cro.  Car.  210. 
But,  when  these  are  referred  to,  it  will  be 
seen  that  nothing  was  intended  at  all  in- 
consistent with  what  I  have  ventured  to 
lay  down  above.  In  both  books,  the  object 
was  to  point  out  that  a  prison  was  not  nec- 
essarily' what  is  commonly  so  called, — a 
place  locally  defined  and  appointed  for  the 
reception  of  prisoners.  Lord  Coke  is  com- 
menting on  the  statute  of  Westminster  2d, 
(1  St.  13  Edw.  II.  c.  48,)  "in  pmona, "  and 
sa3-8:  "Every  restraint  of  the  liberty  of  a 
freeman  is  an  imprisonment,  although  he 


!be  not  within  the  walls  of  any  common 
prison."  The  passage  in  Cro.  Car.  is  from 
a  curious  case  of  an  information  against 
Sir  Miles  Hobert  and  Mr.  Stroud  for  escap- 
ing out  of  the  Gate-House  Prison,  to 
which  they  had  been  committed  by  the 
king.  The  question  was  whether,  under 
the  circumstances,  they  had  ever  been 
there  imprisoned.  Owing  to  the  sickness 
in  London,  and  through  the  favor  of  the 
keeper,  these  gentlemen  had  not,  except 
on  one  occasion,  ever  been  within  the 
walls  of  the  Gate-House.  The  occasion  is 
somewhat  singularly  expressed  in  the  de- 
cision of  the  court,  which  was  "that  their 
voluntary  retirement  to  the  close  stool" 
in  the  Gate-House  "made  them  to  be  pris- 
oners. "  The  resolution,  however,  in  ques- 
tion is  this:  "That  the  prison  of  the 
king's  bench  is  not  any  local  prison,  con- 
fined only  to  one  place,  and  that  every 
place  where  any  person  is  restrained  of  his 
liberty  is  a  prison  ;  as  if  one  take  sanctu- 
ary, and  depart  thence,  he  shall  be  said  to 
break  prison. " 

On  a  case  of  this  sort,  which,  if  there  be 
difficulty  in  it,  is  at  least  purely  element- 
ary, it  is  not  easy  nor  necessary  to  en- 
large; and  I  am  unwilling  to  put  any  ex- 
treme case  hypothetically ;  but  I  wish  to 
meet  one  suggestion,  which  has  been  put 
as  avoiding  one  of  the  difficulties  which 
cases  of  this  sort  might  seem  to  suggest. 
If  it  be  said  that  to  hold  the  present  case 
to  amount  to  an  imprisonment  would 
turn  every  obstruction  of  the  exercise  of  a 
right  of  way  into  an  imprisonment,  the 
answer  is  that  there  must  be  something 
like  personal  menace  or  force  accompany- 
ing the  act  of  obstruction,  and  that,  with 
this,  it  will  amount  to  imprisonment.  I 
apprehend  that  is  not  so.  If,  in  the 
course  of  a  night,  both  ends  of  a  street 
were  walled  up,  and  there  was  no  egress 
from  the  house  but  into  the  street,  I  should 
have  no  difficulty  in  saying  that  the 
inhabitants  were  thereby  imprisoned ; 
but  if  only  one  end  were  walled  up.  and 
an  armed  force  stationed  outside  to  pre- 
vent any  scaling  of  the  wall  or  passage 
that  way,  I  should  feel  equally  clear  that 
there  was  no  imprisonment.  If  there  were, 
the  street  would  obviously  be  the  prison  ; 
and  yet,  as  obviously,  none  would  be  con- 
fined in  it. 

Knowing  that  my  lord  has  entertained 
strongly  an  opinion  directly  contrary  to 
this,  I  am  underserious  apprehension  that 
I  overlook  some  difficulty  in  forming  my 
own  ;  but,  if  it  exists,  I  have  not  been  abfe 
to  discover  it,  and  am  therefore  bound  to 
state  that,  according  to  my  view  of  the 
case,  the  rule  should  be  absolute  for  a  new 
trial. 

WiLLi.\MS,  J.  I  also  have  had  the  bene- 
fit of  seeing,  and  beg  leave  to  refer  to, 
what  my  Brother  Patteson  has  written, 
explaining  the  manner  in  which  the  only 
question  now  before  us  in  this  case  is 
raised,  and  showing  that  it  depends  upon 
whether  the  following  facts  constitute  an 
imprisonment  in  point  of  law  : 

A  part  of  Hammersmith  bridge,  which 
is  generally  used  as  a  public  footway,  was 
appropriated  for  seats  to  view  a  regatta 
on  the  river,  and  separated  for  that  pur 


84 


LAW  OF  TORTS. 


pose  from  the  carriage-way  by  a  tempo- 
rary fence.  The  plaintiff  insisted  upon 
passing  along  the  part  so  appropriated, 
and  attempted  to  climb  over  the  fence. 
The  defendant  (clerk  of  the  bridge  com- 
pany) pulled  him  back,  but  the  plaintiff 
succeeded  in  climbing  over  the  fence.  The 
defendant  then  stationed  two  policemen 
to  prevent,  and  they  did  prevent,  the  plain- 
tiff from  proceeding  forward  along  the 
footway  in  the  direction  he  wished  to  go. 
The  plaintiff,  however,  was  at  the  same 
time  told  that  he  might  go  bac^  into  the 
carriage-way,  and  proceed  to  the  other 
side  of  the  bridge,  if  he  pleased.  The  plain- 
tiff refused  to  do  so,  and  remained  where 
he  was  so  obstructed,  about  half  an  hour. 
And,  if  a  partial  restraint  of  the  will  be 
fiutficient  to  constitute  an  imprisonment, 
such  undoubtedly  took  place.  He  wished 
to  go  in  a  particular  direction,  and  was 
prevented  ;  but,  at  the  same  time,  another 
course  was  open  to  him. 

About  the  meaning  of  the  word  "im- 
prisonment." and  the  definitions  of  it  usu- 
ally given,  there  is  so  little  doubt  that  any 
difference  of  opinion  is  scarcely  possible. 
Certainly,  so  far  as  I  am  aware,  none  such 
exists  upon  the  present  occasion.  The 
■difficulty,  whatever  it  may  be,  arises  when 
i;he  general  rule  is  applied  to  the  facts  of 
-a  particular  case.  "Every  confinement  of 
the  person,"  according  to  Blackstoue, 
■(3  Bl.  Comm.  127,)  "is  an  imprisonment, 
•whether  it  be  in  a  common  prison,  or  in 
•a.  private  house,  or  in  the  stocks,  or  even 
by  forcibly  detaining  one  in  the  public 
streets,"  which,  perhaps,  maj'  seem  to  im- 
p\y  the  application  of  force  more  than  is 
really  necessary  to  make  an  imprisonment. 
Lord  Coke,  in  his  second  Institute,  (2  Inst. 
589.)  speaks  of  "a  prison  in  law"  and  "a 
prison  indeed;"  so  that  there  may  be  a 
constructive,  as  well  as  an  actual,  impris- 
onment; and  therefore  it  maybe  admitted 
that  personal  violence  need  not  be  used  in 
order  to  amount  to  it.  "If  the  bailiff,"  as 
the  case  is  put  in  Bull.  N.  P.  62,  "  who  has 
a  process  against  one,  says  to  him,  '  You 
aremyprisoner;IhaTea  writ  against  you,' 
upon  which  he  submits,  turns  back,  or  goes 
with  him,  though  the  bailiff  never  touched 
him,  yet  it  is  an  arrest,  because  he  sub- 
mitted to  the  process. "  So,  if  a  person 
should  direct  a  constable  to  take  another 
in  custody,  and  that  person  should  be 
told  by  the  constable  to  go  with  him,  and 
the  orders  are  obeyed,  and  they  walk  to- 
gether in  the  direction  pointed  out  by  the 
constable,  that  is  constructively  an  im- 
prisonment, though  no  actual  violence 
be  used.  In  such  cases,  however,  though 
little  may  be  said,  much  is  meant  and 
perfectly  understood.  The  party  ad- 
clressed  in  the  manner  above  supposed 
feels  that  he  has  no  option,  no  more  pow- 
er of  going  in  any  but  the  one  direction 
prescribed  to  him,  than  if  the  constable 
or  bailiff  had  actually  hold  of  him.  No  re- 
turn or  deviation  from  the  course  pre- 
scribed is  open  to  him.  And  it  is  that  en- 
tire restraint  upon  the  will  which,  I  ap- 
prehend, constitutes  the  imprisonment.  In 
the  passage  cited  from  BuUer's  Nisi  Prius 
it  is  remarked  that  if  the  party  addressed 
by  the  bailiff,  instead  of  complying,  had 
run   away,  it  could  be  no  arrest,  unless 


the  bailiff  actually  laid  hold  of  him,  and 
for  obvious  reasons.  Suppose  (and  the 
supposition  is  perhaps  objectionable,  as 
only  putting  the  case  before  us  over  again) 
any  person  to  erect  an  obstruction  across 
a  public  passage  in  a  town,  and  another, 
who  had  a  right  of  passage,  to  be  refused 
permission  by  the  party  obstructing,  and, 
after  some  delay,  to  be  compelled  to  re- 
turn and  take  another  and  circuitous 
route  to  his  place  of  destination.  I  do  not 
think  that,  during  such  detention,  such 
person  was  under  imprisonment,  or  could 
maintain  an  action  for  false  imprisonment, 
whatever  other  remedj'  might  be  open  to 
him.  I  am  desirous  only  to  illustrate  my 
meaning,  and  explain  the  reason  why  I 
consider  the  imprisonment  in  this  case 
not  to  be  complete.  The  reason,  shortly, 
is  that  I  am  aware  of  no  case,  nor  of  any 
definition,  which  warrants  the  supposi- 
tion of  a  man  being  imprisoned  during 
the  time  that  an  escape  is  open  to  him,  if 
he  chooses  to  avail  himself  of  it. 

Patteson,  J.  This  was  an  action  of 
trespass  for  an  assault  and  false  impris- 
onment. The  pleas  were, — as  to  the  as- 
sault, son  assault  demesne;  as  to  the  im- 
prisonment, that  the  plaintiff,  before  the 
imprisonment,  assaulted  the  defendant, 
wherefore  the  defendant  gave  him  into 
custody.  The  replication  was  de  injuria 
to  each  plea.  This  puts  in  issue,  as  to 
the  first  plea,  who  committed  the  first 
assault;  and,  as  to  the  second,  whether 
the  imprisonment  was  before  or  after  the 
assault,  if  any.  committed  by  the  plain- 
tiff. Supiiosing  the  defendant  to  have 
made  the  first  assault,  and  the  plaintiff 
to  have  followed,  and  such  continuous  as- 
saulting to  have  taken  place,  the  plaintiff 
must  succeed  on  the  issue  as  to  the  first 
plea.  Supposing  a  continuous  imprison- 
ment to  be  established,  and  an  assault  by 
the  plaintiff,  but  which  took  place  in  ti'y- 
ing  to  escape  from  that  imprisonment,  and 
not  before  the  imprisonment,  the  plaintiff 
must  succeed  on  the  issue  as  to  the  second 
plea.  If,  on  the  other  hand,  the  plaintiff 
did  assault  the  defendant  before  the  im- 
prisonment, then  he  must  fail  upon  the  is- 
sue as  to  the  second  plpa,  even  if  his  as- 
sault was  justifiable,  because  in  that  case 
he  should  have  replied  such  justification, 
as,  for  instance,  defense  of  his  close,  or 
that  he  was  in  the  exercise  of  a  right  of 
way  which  the  defendant  obstructed,  or 
other  matter  of  justification.  Now,  the 
facts  of  this  case  appear  to  be  as  follows: 
A  part  of  Hammersmith  bridge,  which  is 
ordinarily  used  as  a  yjublic  footwaj-,  was 
appropriated  for  seats  to  view  a  regatta 
on  the  river,  and  separated  for  that  pur- 
pose from  the  carriage-way  by  a  tempo- 
rary fence.  The  plaintiff  insisted  on  pass- 
ing along  the  part  so  appropriated,  and 
attempted  to  climb  over  the  fence.  The 
defendant,  being  clerk  of  the  bridge  com- 
pany, seized  his  coat,  and  tried  to  pull 
liim"  back.  The  plaintiff,  however,  suc- 
ceeded in  climbing  over  the  fence.  The  de- 
jfendantthen  stationed  two  policemen  to 
Ijrevent,  and  thej'  did  prevent,  the  plain- 
tiff from  proceeding  forward  along  the 
j  footway;  but  he  was  told  he  might  go 
I  back  into  the  carriage-way,  and  proceed 


FALSE  IMPEISOXMEXT. 


85 


to  the  other  side  of  the  bridge,  if  he 
pleased.  Tlie  plaintiff  would  not  do  so, 
but  remained  where  he  was  above  half  an 
hour,  and  then,  on  the  defendant  still  re- 
fusing to  suffer  him  to  go  forward  along 
the  footway,  he  endeavored  to  force  his 
way,  and,  in  so  doing,  assaulted  the  de- 
fendant; whereupon  he  was  taken  into 
custody. 

It  is  plain  from  these  facts  that  the  first 
assault  was  committed  by  the  defendant 
when  he  tried  to  pull  the  plaintiff  back  as 
he  was  climbing  over  the  fence;  and.  as 
the  jury  have  found  the  whole  transaction 
to  have  been  continuous,  the  plaintiff 
would  be  entitled  to  retain  the  verdict 
which  he  has  obtained  on  the  issue  as  to 
the  first  plea.  Again,  if  what  passed  be- 
fore the  plaintiff  assaulted  the  defendant 
was  in  law  an  imprisonment  of  the  plain- 
tiff, that  imprisonment  was  undoubtedly 
continuous,  and  the  assault  by  the  plain- 
tiff would  not  have  been  before  the  im- 
prisonment, as  alleged  in  the  second  plea, 
but  during  it,  and  in  attempting  to  escape 
from  it;  and  the  plaintiff  would,  in  that 
case,  be  entitled  to  retain  the  verdict 
which  he  has  obtained  on  the  issue  as  to 
the  second  plea.  But,  if  what  so  passed 
was  not  in  law  an  imprisonment,  then  the 
])laintiff  ought  to  have  replied  the  right 
of  footway  and  the  obstruction  by  the  de- 
fendant, and  that  he  necessarily  assaulted 
him  in  the  exercise  of  the  right,  and,  not 
having  so  replied,  is  not  entitled  to  the 
verdict.  So  that  the  case  is  reduced  to  the 
question  whether  what  passed  before  the 
assault  by  the  plaintiff  was  or  was  not  an 
imprisonment  of  the  plaintiff  in  point  of 
law. 

I  have  no  doubt  that,  in  general,  if  one 
man  compels  another  to  staj*  in  any  given 
place  against  his  will,  he  imprisons  that 
other  just  as  much  as  if  he  locked  him  up  in 
a  room  ;  and  1  agree  that  it  is  not  necessary, 
in  order  to  constitute  an  imprisonment, 
that  a  man's  pei-son  should  be  touched.  I 
agree,  also,  that  the  compelling  a  man  to 
go  in  a  given  direction  against  his  will 
may  amount  to  imprisonment.  But  I 
f-annot  bring  my  mind  to  the  conclusion 
that,  if  one  man  merely  obstructs  the 
passage  of  another  in  a  particular  direc- 
tion, whether  by  threat  of  personal  vio- 
lence or  otherwise,  leaving  him  at  liberty 
to  stay  where  he  is  or  to  go  in  any  other 
direction  if  hepleases,he  can  be  said  there- 
by to  imprison  him.  He  does  him  wrong, 
undoubtedly,  if  there  was  a  right  to  pass 
in  that  direction,  and  would  be  liable  to 
an  action  on  the  case  for  obstructing  the 
passage,  or  of  assault,  if,  on  the  party  per- 
sisting in  going  in  that  direction,  he 
touched  his  person,  or  so  threatened  him 
as  to  amount  to  an  assault.  But  impris- 
onment is,  as  I  apprehend,  a  total  re- 
straint of  the  liberty  of  the  person,  for 
however  short  a  time,  and  not  a  partial 
obstruction  of  his  \vill,  whatever  incon- 
venience it  may  bring  on  him.  The  qual- 
ity of  the  act  cannot,  however,  depend 
on  the  right  of  the  opposite  party.  If  it  be 
an  imprisonment  to  prevent  a  man  pass- 
ing along  the  public  highway,  it  must 
be  equally  so  to  prevent  him  passing  fur- 
ther along  a  field  into  which  he  has  broken 
by  a  clear  act  of  trespass. 


A  case  was  said  to  have  been  tried  before 
Lord  Chief  Justice  Tixdal,  involving  this 
question  ;  but  it  appears  that  the  plaintiff 
in  that  case  was  compelled  to  stay  and 
hear  a  letter  read  to  him  against  his  will, 
which  was  doubtless  a  total  restraint  of 
his  liberty  while  the  letter  was  read.  I 
agree  to  the  definition  in  Selwyn's  Nisi 
Prius,  title  "Imprisonment:"  "False  im- 
prisonment is  a  restraint  on  the  liberty  of 
the  person  without  lawful  cause;  either 
by  confinement  in  prison,  stocks,  house, 
etc.,  or  even  by  forcibly  detaining  the 
party  in  the  streets  against  his  will. "  He 
cites  22  Book  Ass.  fol.  104,  B,  pi.  85,  per 
Thorpe,  C.  J.  The  word  there  used  is 
'"arrest,"  which  appears  to  me  to  include 
a  "detaining,"  as  Mr.  Selwyn  expresses  it, 
and  not  to  mean  merely  the  preventing  a 
person  from  passing.  Upon  the  whole,  I 
am  of  opinion  that  the  only  imprison- 
ment proved  in  this  case  was  that  which 
occurred  when  the  plaintiff  was  taken  into 
custody  after  he  had  assaulted  the  defend- 
ant, and  that  the  second  plea  was  made 
out;  I  therefoi'e  think  that  the  rule  for  a 
new  trial  ought  to  be  made  absolute. 

Denmax,  C.  J.  I  have  not  drawn  up  a 
formal  judgment  in  this  case,  because  I 
hoped  to  the  last  that  the  arguments 
which  mj- learned  brothers  would  produce 
in  support  of  their  opinion  might  alter 
mine.  We  have  freely  discussed  the  matter, 
both  orally  and  in  written  communica- 
tions; but,  after  hearing  what  they  have 
advanced,  I  am  compelled  to  say  that  my 
first  impression  remains.  If,  as  I  must  be- 
lieve, it  is  a  wrong  one,  it  may  be  in  some 
measure  accounted  for  by  the  circum- 
stances attending  the  case.  A  company 
unlawfully  obstructed  a  public  way  for 
their  own  profit,  extorting  money  from 
passengers,  and  hiring  policemen  to  effect 
this  purpose.  The  plaintiff,  wishing  to  ex- 
ercise his  right  of  way,  is  stopped  by  force, 
and  ordered  to  move  in  a  direction  which 
he  wished  not  to  take.  He  is  told  at  the 
same  time  that  a  force  is  at  hand  ready  to 
compel  his  submission.  That  proceeding 
appears  to  me  equivalent  to  being  pulled 
by  the  collar  out  of  one  line  into  another. 
There  is  surae  difficulty,  perhaps,  in  defin- 
ing "imprisonment"  in  the  abstract,  with- 
out reference  to  its  illegality;  nor  is  it  nec- 
essary for  me  to  do  so,  because  I  consider 
these  acts  as  amountingto  imprisonment. 
That  word  I  understand  to  mean  any 
restraint  of  the  person  by  foi-ce.  In  Bul- 
ler's  Nisi  Prius  (page  22)  it  is  said  :  "Ev- 
ery restraint  of  a  man's  liberty  under  the 
custody  of  another,  either  in  a  jail,  house, 
stocks,  or  in  the  "street,  is  in  law  an  im- 
prisonment; and  whenever  it  is  done  with- 
out a  proper  authority,  is  false  imprison- 
ment, for  which  the  law  gives  an  action; 
and  this  is  commonly  joined  to  assault 
and  battery,  for  every  imprisonment  in- 
cludes a  battery,  and  every  battery  an  as- 
sault." It  appears,  therefore,  that  the 
technical  language  has  received  a  very 
large  construction,  and  that  there  need 
not  be  any  touching  of  the  person.  A 
locking  up  would  constitute  an  imprison- 
ment without  touching.  From  the  lan- 
guage of  Thorpe,  C.  J.,  which  Mr.  Selwyn 
cites   from  the  Book  of  Assizes,  (22  Book 


86 


LAW  OF  TORTS. 


Ass.  fol.  104,  B,  pi.  8.5,)  it  appears  that, 
even  in  very  early  times,  restraiut  of  liber- 
ty by  force  was  understood  to  be  the  rea- 
sonable definition  of  imprisonment.  I  had 
no  idea  that  any  person  in  these  times 
supposed  any  particular  boundary  to  be 
necessary  to  constitute  imprisonment,  or 
that  the  restraint  of  a  man's  person  from 
doing  what  he  desires  ceases  to  be  an  im- 
prisonment because  he  may  find  some 
means  of  escape.  It  is  said  that  the  party 
here  was  at  liberty  to  go  in  another  direc- 
tion. I  am  not  sure  that  in  fact  he  was,  be- 
cause the  same  unlawful  power  which  pre- 
vented him  from  taking  one  course  might, 
in  case  of  acquiescence,  have  refused  him 
any  other.  But  this  liberty  to  do  some- 
thing else  does  not  appear  to  me  to  affect 
the  question  of  imprisonment.  As  long 
as  I  am  prevented  from  doing  what  I  have 
a  right  to  do,  of  what  importance  is  it 
that  I  am  permitted  to  do  something  else? 
How  does  the  imposition  of  an  unlawful 
condition  show  that  I  am  not  restrained? 
It  I  am  locked  in  a  room,  am  I  not  impris- 
oned because  I  might  effect  my  escape 
through  a  window,  or  iDecause  I  might 
find  an  exit  dangerous  or  inconvenient  to 
myself,  as  by  wading  through  water,  or 
by  taking  a  route  so  circuitous  that  my 
necessary  affairs  would  suffer  by  delay? 


It  appears  to  me  that  this  is  a  total  depri- 
vation of  liberty  with  reference  to  the  pur- 
pose for  which  he  lawfully  wished  to  em- 
ploy his  liberty;  and,  being  effected  by 
force,  it  is  not  the  mere  obstruction  of  a 
way,  but  a  restraint  of  the  person.  The 
case  cited  as  occurring  before  Lord  Chief 
Justice  TiNDAi.,  asl  understand  it, is  much 
in  point.  He  held  it  an  imprisonment 
where  the  defendant  stopped  the  plaintiff 
on  his  road  till  he  had  read  a  libel  to  him, 
yet  he  did  not  prevent  his  escaping  in  an- 
other direction.  It  said  that,  if  any  dam- 
age arises  from  such  obstruction,  a  special 
action  on  the  case  may  be  brought.  Must 
I  then  sue  out  a  new  writ,  stating  that 
the  defendant  employed  direct  force  to  pre- 
vent my  going  where  my  business  called 
me,  whereby  1  sustained  loss?  And,  if  I 
do,  is  it  certain  that  I  shall  not  be  told 
that  I  have  misconceived  my  remedy,  for 
all  flows  from  the  false  imprisonment, 
and  that  should  have  been  the  subject  of 
an  action  of  trespass  and  assault?  For 
the  jury  properly  found  that  the  whole  of 
the  defendant's  conduct  was  continuous; 
it  commenced  in  illegality;  and  the  plain- 
tiff  did  right  to  resist  it  as  an  outrageous 
violation  of  the  liberty  of  the  subject  from 
the  very  first. 
Rule  absolute. 


(See,  also,  Hildebrand  v.  McCrum,  101  Ind.  61;  Marshall  v.  Heller,  55  Wis.  392,  13  N.  W.  Rep.  236; 
Sorenson  v.  Dundas,  50  Wis.  335,  7  N. W.  Rep.  259 ;  McNay  v.  Stratton,  9  111.  App.  215 ;  Mowry  v.  Chase, 
100  Mass.  79.) 


(90  N.  Y.  77.) 

Lynch  v.  Metropolitan  El.  Ry.  Co. 

(Court  of  Appeals  of  New  York.    Oct.  10, 1882.) 

False  Impkisoxmext  —  Detextiox  of  Passenger 
BY  Carkier. 
flaintifl  purchased  a  ticket  for  a  passage  up- 
on defendant's  railway,  and  entered  one  of  its 
cars,  but,  before  reaching  his  destination,  he  lost 
his  ticket.  On  attempting  to  pass  from  the  sta- 
tion platform  through  the  gate  into  the  street,  he 
was  prohibited  by  the  gate-keeper,  and  told  that 
he  could  not  pass  until  he  should  produce  a  ticket 
or  pay  his  fare.  He  explained  that  he  had  paid 
his  fare  and  lost  his  ticket,  and  insisted  on  pass- 
ing out,  but  was  pushed  back  by  the  gate-keeper; 
and,  on  his  further  insisting  on  his  right  to  pass, 
the  gate-keeper  sent  for  a  police  officer,  and  or- 
dered his  arrest,  whereupon  he  was  arrested  by 
the  officer.  Held,  that  the  detention  of  plaintiff 
by  the  gate-keeper  for  the  purpose  of  enforcing 
payment  of  fare  was  illegal;  and  that  defendant, 
having  instructed  its  gate-keepers  not  to  let  pas- 
sengers pass  out  until  they  should  either  pay  their 
fares  or  show  tickets,  was  liable  to  plaintiff  for 
the  false  imprisonment  by  the  gate-keeper.  Finch, 
J.,  dissenting. 

Appeal  from  supreme  court,  general 
term,  first  department. 

Action  by  Michael  Lynch  against  the 
Metropolitan  Elevated  Railway  Company 
for  false  imprisonment.  At  the  trial  the 
jury  found  a  verdict  for  plaintiff,  and  judg- 
ment for  plaintiff  was  entered  thereon, 
which  was  affirmed  on  appeal  to  the  gen- 
eral term.  From  the  judgment  of  the  gen- 
eral term  defendant  appealed. 

R.  E.  Deyo,  for  appellant.  Charles  C. 
Smith,  for  respondent. 

Earl,  J.  In  September,  1878,  the  plain- 
tiff purchased  a  ticket  for  a  passage  upon 
defendant's  railway  from  its  Forty-Second 


Street  station  to  its  Rector-Street  sta- 
tion, and  entered  one  of  its  cars.  Before 
reaching  his  destination  he  lost  his  ticket, 
and  when  he  attempted  to  pass  from  the 
station  platform  through  the  gate  into 
the  street  he  was  prohibited  by  the  gate- 
keeper, and  told  that  he  could  not  pass 
until  he  produced  a  ticket  or  paid  his  fare. 
He  explained  that  he  had  paid  his  fare 
and  lost  his  ticket,  and  insisted  upon  pass- 
ing out.  He  was  pushed  back  by  thegate- 
keeper,  who  refused  to  let  him  pass.  He 
expostulated,  and  insisted  upon  his  right 
to  pass,  when  the  gate-keeper  sent  for  a 
police  officer,  and  ordered  his  arrest.  He 
was  arrested,  and  taken  to  a  police  sta- 
tion by  the  police  officer,  the  gate-keeper 
going  along,  and  making  complaint 
against  him.  He  was  locked  up  in  the  sta- 
tion-house over  night.  In  the  morning 
the  gate-keeper  appeared  against  him,  and 
he  was  examined  before  a  police  magis- 
trate, and  discharged.  This  action  was 
afterwards  commenced  to  recover  dam- 
ages for  the  false  arrest  and  imprisonment. 
He  recovered  a  judgment,  which  has,  upon 
appeal,  been  affirmed.     24  Hun,  506. 

We  are  of  opinion  that  the  trial  judge 
was  right  in  holding,  as  matter  of  law, 
that  the  plaintiff's  arrest  and  detention 
were  illegal.  The  defendant  had  the 
right  to  make  reasonable  rules  and  regu- 
lations for  the  management  of  its  busi- 
ness and  the  conduct  of  its  passengers.  It 
could  require  every  passenger  before  en- 
tering one  of  its  cars  to  produce  a  ticket, 
and  to  produce  and  deliver  up  the  ticket 
at  the  end  of  his  passage,  or  again  pay 
his  fare.  Railroad  Co.  v.  Page,  22  Barb. 
130;  Hibbard  v.  Railroad  Co.,  15  N.  Y.455; 


FALSE  IMPRISONMENT. 


8? 


Vedder  v.  Fellows,  20  N.  Y.126;  Townsend 
V.  Railroad  Co.,  56  N.  Y.  295.  The  defend- 
ant had  such  a  regulation,  and  no  com- 
plaint can  be  made  of  that.  But  it  had 
no  regulation,  and  could  legally  have 
none,  that  a  passenger,  before  leaving  its 
cars  or  its  premises,  should  produce  a  tick- 
et or  pay  his  fare,  and,  if  he  did  not,  that 
he  should  then  and  there  be  detained  and 
imprisoned  until  he  did  so.  At  most,  the 
plaintiff  was  a  debtor  to  the  defendant  for 
the  amount  of  his  fare,  and  that  debt 
could  be  enforced  against  him  by  the  same 
remedies  which  any  creditor  has  against 
his  debtor.  If  the  defendant  had  the  right 
to  detain  him  to  enforce  payment  of  the 
fare  for  ten  minutes,  it  could  detain  him 
for  one  hour,  or  a  day,  or  a  year,  or  for 
any  other  time,  until  compliance  with 
its  demands.  That  would  be  arbitrary 
imprisonment  by  a  creditor  without  pro- 
cess or  trial,  to  continue  during  his  will, 
until  his  debt  should  be  paid.  Even  if  a 
reasonable  detention  may  be  justified  to 
enable  the  carrier  to  inquire  into  the  cir- 
cumstances, it  cannot  be  to  compel  pay- 
ment of  fare.  The  detention  here  was  not 
to  enable  the  gate-keeper  to  make  any 
inquiry,  but  simply  to  compel  payment. 
He  was  absolutely  informed  that  he  could 
not  pass  out  without  producing  a  ticket 
or  paying  his  fare.  This  is  not  like  the 
cases  to  which  the  learned  counsel  for  de- 
fendant ha3  called  our  attention,  where 
railroad  conductors  have  been  held  justi- 
fied in  ejecting  passengers  from  cars  for 
refusing  to  produce  tickets  or  pay  their 
fares.  A  passenger  has  no  right  to  ride  in 
a  car  without  payment  of  his  fare,  and,  if 
he  refuses  to  pay,  the  railroad  company 
is  not  bound  to  carry  him,  and  may,  at 
a  proper  place  and  in  a  proper  manner, 
remove  him  from  the  car;  but  it  could 
not  imprison  him  in  a  car  until  he  paid  his 
fare,  for  the  purpose  of  compelling  pay- 
ment. 

These  views  have  the  sanction  of  very 
high  authority.  In  Sunbolf  v.  A.lford,  3 
Mees.  &  W.  248,  it  was  held  that  an  inn- 
keeper could  not  detain  the  person  of  his 
guest  in  order  to  secure  paj'ment  of  his 
bill.  Lord  Abingeu  said:  "If  an  inn- 
keeper has  a  right  to  detain  the  person  of 
his  guest  for  the  non-payment  of  his  bill, 
he  has  a  right  to  detain  him  until  the  bill 
is  paid,  which  may  be  for  life;  so  that 
this  defense  supposes  that  by  the  common 
law  a  man  who  owes  a  small  debt,  for 
which  he  could  not  be  imprisoned  by  legal 
process,  may  yet  be  detained  by  an  inn- 
keeper for  life.  The  proposition  is  mon- 
strous. *  *  *  Where  is  the  law  that 
says  a  man  shall  detain  another  for  his 
debt  without  process  of  law?"  In  Chil- 
ton V.  Railway  Co.,  l(i  Mees.  &  W.  212,  the 
defendant  was  organized  under  an  act 
conferring  much  broader  powers  than  are 
possessed  by  the  defendant  in  this  case, 
and  yet  it  was  held  that  it  could  not  ar- 
rest a  passenger  for  refusing  to  pay  a  fare 
which  it  was  entitled  to  demand.  In 
Standish  v.  Steam-Ship  Co.,  Ill  Mass.  512, 
the  plaintiff  purchased  u  ticket  before  go- 
ing upon  the  defendant's  steam-boat  for 
a  passage  from  Fall  River  to  New  York. 
The  defendant's  regulation  was  that  the 
passenger  should,  upon   leaving  the  boat 


at  the  end  of  his  passage,  deliver  up  his 
ticket  or  pay  his  fare.  When  the  plaintiff 
reached  New  York  he  found  he  had  lost 
his  ticket,  and  when  he  attempted  to  leave 
the  boat  he  was  prohibited,  and  told  that 
he  could  not  pass  until  he  produced  a  tick- 
et or  i3aid  his  fare.  He  was  detained  two 
hours,  and  then,  under  protest,  paid  his 
fare,  and  was  permitted  to  leave  the  boat. 
He  sued  the  company  for  false  imprison- 
ment, and  recovered  $50.  The  trial  judge 
charged  the  jury  that  "the  law  gave  the 
defendant  a  lien  on  the  baggage  of  the 
plaintiff,  but  not  on  his  person  ;  that  they 
had  no  right  to  detain  him  until  he  did 
pay  his  fare  or  give  up  a  ticket,  or  to  com- 
pel him  to  pay  his  fare  or  give  up  a  ticket, 
but  that,  if  he  knew  that  he  was  to  give 
up  his  ticket  before  leaving  the  boat,  the 
defendant  had  a  right,  if  he  did  not  give 
it  up  or  pay  his  fare,  to  detain  him  for  a 
reasonable  time  to  investigate  on  the 
spot  the  circumstances  of  the  case;  and 
if  the  jury  found  that  the  defendant  de- 
tained him  for  the  purpose  of  compelling 
him  to  pay  his  fare  or  to  give  up  his  tick- 
et, or  detained  him  for  the  purpose  of  in- 
vestigating his  case  an  unreasonable  time, 
or  in  an  unreasonable  way,  he  was  enti- 
tled to  recover.  "  The  plaintiff  appealed, 
alleging  for  error  that  the  judge  erred  in 
charging  the  jury  that  the  defendant  had 
a  right  to  detain  him  a  reasonable  time 
to  investigate  the  circumstances  of  the 
case.  No  portion  of  the  charge  was  con- 
demned, and  the  portion  excepted  to  by 
the  plaintiff  was  held  to  be  correct. 

A  municipal  corporation  authorized  to 
make  by-laws  and  pass  ordinances,  and 
inflict  penalties  for  their  violation,  cannot 
enforce  obedience  to  them  by  imprison- 
ment, unless  expressly  authorized  so  to 
do  by  statute.  Potter,  Corp.  §  81 ;  Clark's 
Case,  5  Coke,  64.  It  was  argued  before  us, 
on  behalf  of  the  defendant,  that  the  ticket 
sold  to  the  plaintiff  was  the  property  of 
the  defendant,  intrusted  to  him  for  a 
special  purpose,  and  that  it  had  the  right 
to  prevent  him,  at  the  end  of  the  journey, 
from  carrj'ing  away  this  property.  I  am 
not  quite  ready  to  assent  that  after  the 
defendant  sold  the  ticket  to  the  plaintiff  it 
retained  any  right  of  propertj'  therein. 
But,  even  if  it  did,  it  did  not  detain  hira 
on  that  ground,  and  he  did  not  then  have 
the  ticket  in  his  possession  or  under  his 
control,  and  hence  a  detention  to  com- 
pel him  to  deliver  it  up  could  not,  on  that 
ground,  be  justified. 

There  was  no  error  in  the  charge  of  the 
judge  in  reference  to  the  branch  of  the 
case  we  have  thus  far  considered.  The 
counsel  of  the  defendant  excepted  to  that 
portion  of  the  charge  of  the  judge  where- 
in he  said,  in  substance,  that  the  defend- 
ant had  no  more  right  to  detain  plaintiff 
until  he  paid  his  fare  than  a  lawyer  would 
have  to  detain  in  his  office  a  client  who 
consulted  him,  and  refused  to  pay  his  fee. 
There  was  no  error  in  this  illustration. 
The  detention  in  either  case  is  unlawful, 
and  is  condemned  in  the  law  upon  precise- 
ly the  same  principles. 

There  was  no  error  in  refusing  to  charge 
the  request  made  by  defendant's  counsel 
that  "the  regulation  of  the  defendant  re- 
quiring passengers  to  produce  and  surren- 


88 


LAW  OF  TORTS. 


der  a  ticket  or  pay  the  legal  fare  before 
leaving  tlie  station  was  a  reasonable  reg- 
ulation." It  is  true  that  wliether  a  regu- 
lation is  a  reasonable  one  or  not  is  a  ques- 
tion of  law  for  the  court,  but  this  request 
readied  too  far.  It  implied  that  the  pas- 
senger was  to  remain  in  the  station,  and 
submit  to  indefinite  detention  there,  until 
he  paid  his  fare,  and  such  a  regulation 
would  not  be  reasonable. 

It  now  remains  only  to  be  considered 
whether  the  defendant  was  responsible 
for  the  acts  of  the  gate-keeper.  When 
the  plaintiff  attempted  to  pa.ss  through 
the  gate  the  gate-keeper  told  him  that  in 
resisting  and  detaining  him  he  was  sim- 
ply doing  his  duty,  and  he  testified  that  in 
all  he  did  he  considered  that  he  was  act- 
ing in  the  line  of  his  duty.  The  defend- 
ant's president  testified  that  there  was  a 
rigid  rule  of  the  company  that  passengers 
were  requirt'd  to  show  at  the  gate  that 
they  had  paid  their  fare  in  order  to  be  able 
to  pass  out;  that  when  they  came  to  the 
gate  the  rule  was  that  the  gate-keeper  was 
not  to  let  them  go  out  till  they  either 
paid  their  fare  or  showed  a  ticket:  and 
that  the  instructions  to  the  gate-keepers 
were  to  collect  tickets  or  fare.  From 
these  facts,  and  all  the  circumstances  of 
the  case,  if  it  is  not  entirely  plain,  the  ju- 
ry could  at  least  find  that  the  company 
expected  the  gate-keeper  would  detain  a 
passenger  who  could  not  or  would  not 
produce  a  ticket  or  pay  his  fare  at  the 


gate,  and  the  gate-keeper  clearly  under- 
stood that  it  was  his  duty  so  to  do.  In 
anything  that  he  did,  he  did  not  act  for 
any  purpose  of  his  own,  but  to  discharge 
what  he  believed  to  be  his  duty  to  his 
principal.  It  matters  not  that  he  exceed- 
ed the  powers  conferred  upon  him  by  his 
principal,  and  that  he  did  an  act  which 
the  principal  was  not  authorized  to  do, 
so  long  as  he  acted  in  the  line  of  his  duty, 
or,  being  engaged  in  the  service  of  the  de- 
fendant, attempted  to  perform  a  duty 
pertaining,  or  which  he  believed  to  per- 
tain, to  that  service.  He  detained  the 
plaintiff  at  the  station,  caused  his  arrest, 
went  with  the  police  officer  to  the  police 
station,  there  made  a  complaint,  and  then, 
the  next  murning,  appeared  before  the 
police  magistrate,  and  renewed  his  com- 
plaint. These  were  successive  steps  taken 
by  the  gate-keeper  to  enforce  the  payment 
of  the  fare  by  the  plaintiff,  or  to  punish 
him  for  refusing  to  pay  it,  and  for  all  that 
he  did  the  defendant  is  responsible.  The 
principles  upon  which  the  liability  of  a 
master  rests  in  such  a  case  have  been  so 
fully  and  plainly  laid  down  in  recent 
cases  in  this  court  that  a  restatement 
of  them  now  would  serve  no  useful  pur- 
l)oses.  Rounds  v.  Railroad  Co.,  64  N.  Y. 
129;  Mott  V.  Ice  Co.,  73  N.  Y.  543;  Devine 
V.  Mills,  90  N.  Y.  637,  mem.  The  judgment 
should  be  affirmed,  with  costs. 

All  concur,  except  Finch,  J.,  dissenting, 
and  Rapallo,  J.,  not  voting. 


Arrest  upon  void  process. 


(64  Wis.  316,  25  N.  W.  Rep.  442. ) 

GELZExNLEUCHTER  v.  Niemeyer. 

(Supreme  Court  of  Wisconsin.    Nov.  3,  18S5.) 

False  Imprisonmext  —  Arrest  under  Warrant 
Void  on  Its  Face. 
In  an  action  for  false  imprisonment,  it  is  not  a 
defense  that  defendant's  participation  in  the  ar- 
rest and  detention  complained  of  was  under  a 
warrant  issued  bj'  a  magistrate,  when  such  war- 
rant is  void  on  its  face. 

Appeal  from  circuit  court,  Columbia 
county. 

Action  by  John  Gelzenleuchter  against 
Henry  W.  Niemeyer.  The  complaint  al- 
leged, in  effect,  that  on  November  13,  18S3, 
the  defendant,  at  Columbus,  Columbia 
county,  maliciously,  and  with  force  and 
arms,'  assaulted  the  plaintiff,  and,  with 
intent  to  injure  him,  directed,  caused,  and 
procured  him  to  be  forcibly,  and  against 
his  will,  arrested,  imprisoned,  and  re- 
strained of  his  liberty  for  the  space  of  six 
hours,  without  any  reasonable  or  proba- 
ble cause  whatever,  and  without  any 
right  or  authority  so  to  do,  to  his  dam- 
age, etc.  The  answer  justified  the  arrest 
and  imprisonment  as  being  duly  and  law- 
fully made  by  the  deputy-sheriff  of  that 
county,  under  and  by  virtue  of  a  criminal 
warrant  duly  and  lawfully  issued  by  a 
justice  of  the  peace  of  that  county,  the 
body  of  which  warrant  is  as  follows: 
"Whereas,  Hy.  W.  Niemeyer  has  this  day 
made  complaint,  on  oath,  in  writing,  to 
the  undersigned,  a  justice  of  the  peace  for 


said  county,  that  John  Gelzenleuchter 
did,  on  the  ninth  day  of  November,  A.  D. 
1SS3,  at  the  city  of  Columbus,  in  said 
county,  unlawfully  and  maliciously  use 
in  reference  to  this  complainant,  and  in 
the  presence  of  John  A.  Kitzerow,  abusive 
language,  by  calling  the  complainant  '  a 
swindler,'  which  language  naturally  tend- 
ed to  provoke  a  breach  of  the  peace, 
against  the  peace  and  dignity  of  the 
state  of  Wisconsin,  and  prays  that  the 
said  John  Gelzenleuchter  may  be  arrested 
and  dealt  with  according  to  law:  Now, 
therefore,  you  are  hereby  commanded 
forthwith  to  apprehend  the  said  John 
Gelzenleuchter,  and  bring  him  before  me, 
to  be  dealt  with  according  to  law.  Giv- 
en under  my  hand  at  Colu.Tibus  this  ninth 
day  of  November,  18S3."  That  the  plain- 
tiff, on  being  brought  before  the  justice, 
pleaded  to  the  charge,  procured  an  ad- 
journment, and  was  released  on  his  own 
recognizance,  and  on  the  adjourned  day 
tried  and  found  not  guilty.  On  the  trial 
of  this  action  the  plaintiff  put  in  evidence 
to  the  effect  that  the  complaint  upon 
which  the  criminal  warrant  was  issued, 
and  therein  mentioned,  was  made,  signed, 
and  sworn  to  by  the  defendant  in  this  ac- 
tion, November  9,  1883;  that  said  com- 
plaint was  then  filed  with  and  by  the  jus- 
tice, who  thereupon  issued  the  criminal 
warrant  mentioned,  reciting  substantially 
all  that  is  contained  in  the  complaint, 
and  delivered  it  to  the  defendant;  that 
the    defendant's    attorney  delivered    the 


FALSE  IMPRISONMENT. 


89 


criminal  warrant  to  the  deputy-sheriff, 
who  arrested,  the  plaintiff  thereon,  as 
stated,  and  kept  him  under  arrest  there- 
on for  about  three  hours;  that,  on  the  day 
the  defendant  made  the  complaint  for  the 
criminal  warrant  before  the  justice,  he 
A-iolently,  and  without  any  cause  or  prov- 
ocation!^ assaulted,  struck,  kicked,  and 
greatly  injured  the  plaintiff.  At  the 
close  of  the  plaintiff's  testimony  the  court 
granted  a  nonsuit  and  dismissed  the  ac- 
tion, and  from  the  judgment  entered 
thereon  the  plaintiff  appealed. 

J.  J.  Sutton,  for  appellant.  G.  W.  Ste- 
phens and  F.  G.  Stroud,  for  respondent. 

Cassoday,  J.  The  attempt  was  made,  as 
it  is  claimed,  to  prosecute  the  plaintiff  for 
the  violation  of  section  439S,  Rev.  St.  It 
is  not  claimed  that  the  plea  of  not  guilty 
and  adjournment  before  the  justice  was 
an}'  waiver  of  the  question  of  jurisdiction. 
It  clearlv  was  not  within  the  rule  stated 
in  Steuer  v.  State.  59  Wis.  472,  IS  N.  W. 
Rep.  433.  The  learned  counsel  for  the  de- 
fendant frankly  concedes  that  the  com- 
plaint made  by  the  defendant  before  the 
justice  charges  no  offense  whatever,  and 
that  the  warrant  issued  thereon,  reciting 
the  complaint,  charges  no  offense  what- 
ever; and  hence  that  the  warrant  is  ab- 
solutely void  upon  its  face.— especially 
withinthe  rule  announced  by  this  court  in 
Steuer  v.  State,  supra.  With  equal  frank- 
ness the  same  counsel  also  concedes  that 
the  evidence  in  the  record  tends  to  show 
that  the  defendant  maliciously  made  the 
complaint,  and  that  he  received  the  war- 
rant from  the  justice,  delivered  it  to  his 
attorney,  who  delivered  it  to  the  officer 
for  the  purpose  of  having  the  plaintiff  ar- 
rested thereon  ;  and  that  the  plaintiff  was 
arrested  and  imprisoned  thereon  for  the 
space  of  thi-ee  hours.  The  counsel  for  the 
defendant  also  concedes  that,  had  the  de- 
fendant caused  the  plaintiff  to  be  arrested 
upon  a  void  process  in  a  civil  action,  then 
he  would  have  been  liable  therefor  in  an 
action  for  false  imprisonment,  as  this 
clearly  is,  even  though  he  acted  in  good 
faith."  But  counsel  ingeniously  contends 
that  "an  action  for  false  imprisonment 
cannot  be  maintained  against  a  party 
who  makes,  or  attempts  to  make,  a  crim- 
inal complaint  to  a  magistrate,  upon 
which  the  magistrate  causes  an  arrest 
by  issuing  his  warrant,  whether  the  facts 
stated  constitute  an  offense  or  not."  In 
suppox-t  of  this  contention  he  cites  several 
authorities.  English  and  American. 

A  careful  reading  of  these  cases  discloses 
the  fact  that  they  are  all  distinguishable. 
In  Beaty  v.  Perkins,  6  Wend.  oS2,  both  the 
warrant  and  the  complaint  upon  which  it 
was  issued  seems  to  have  charged  an 
offense,  and  of  course  it  was  held  that  the 
party  making  the  complaint  was  not  lia- 
ble in  trespass.  In  Stewart  v.  Hawley, 
21  Wend.  552,  the  constable  who  made  the 
arrest  was  the  party  who  made  the  com- 
plaint to  the  justice,  and  it  was  held  that 
an  action  of  trespass,  or  false  imprison- 
ment, could  not  be  maintained  against 
him  or  the  justice,  and  this  was  put  on 
the  ground  that  the  recitals  in  the  com- 
plaint and  warrant  presented  "a  case 
within  the  jurisdiction  of  the  justice,  and 


which  called  for  the  exercise  of  his  judicial 
functions,  and  if  so,  though  he  maj-  have 
erred,  he  is  not  liable."  Page  556.  Chief 
Justice  Nei.so.n'  said  :  "  I  cannot  agree  with 
the  plaintiff  that  the  facts  are  so  barren 
as  not  to  lay  the  foundation  for  jurisdic- 
tion, or  that  the  decision  was  so  gross  as 
to  afford  evidence  per  se  of  the  influence  of 
bad  motives."  In  Von  Latham  v.  Libby, 
3S  Barb.  345,  the  opinion  of  the  court  ex- 
pressly states  that  "the  only  connection 
of  the  defendants  with  the  arrest  or  deten- 
tion of  the  plaintiff  *  *  *  is  that  they 
stated  their  case  to  the  magistrate, 
charging  the  plaintiff  with  a  misdemeanor 
upon  the  facts  which  they  swore  to,  and 
asked  for  his  arrest;"  and  for  that  reason 
it  was  held  that  they  were  not  liable  for 
false  imprisonment.  Several  of  the  other 
cases  relied  upon  by  counsel  are  to  the 
same  effect,  as  in  Murphy  v.  Walters.  34 
Mich.  ISO;  Grinham  v.  Willey,  4 Hurl.  &  N. 
496;  Barber  v.  RoUinson,  1  Cromp.  &  M. 
330;  Carratt  v.  Morley,!  Q.  B.  18;  West  v. 
Smallwood,  S.Mees.  &  W.  418.  The  true 
distinction  is  sharpl3'made  in  the  last  two 
cases  cited.  In  West  v.  Smallwood  the 
warrant  of  arrest  was  without  jurisdic- 
tion, and  it  was  held  that  a  party  merely 
making  a  complaint  before  a  magistrate  on 
a  subject  over  which  he  has  general  juris- 
diction is  not  liable  to  false  imprisonment; 
but  it  was  held  that  the  fact  that  the 
complainant  accompanied  the  constable 
charged  with  the  execution  of  the  warrant 
"  was  evidence  to  go  to  the  jury  of  a  par- 
ticipation in  the  arrest."  In  Carratt  v. 
Morley  the  former  was  arrested  on  a  war- 
rant issued  on  a  judgment  by  default  in  a 
civil  action  in  favor  of  the  latter,  but  Mor- 
ley in  no  way  participated  in  making  the 
arrest.  Carratt  then  brought  an  action 
of  trespass  for  false  imprisonment  against 
Morle\',  the  six  commissioners  who  or- 
dered the  warrant  to  be  issued  by  their 
clerk,  and  the  officer  making  the  arrest. 
The  commissioners  w^ere  without  jurisdic- 
tion. Lord  Abixgek  thought  that  Mor- 
ley was  "not  liable,  inasmuch  as  he  had 
only  stated  his  case  to  the  commissioners, 
who  proceeded  to  adjudge  upon  it,"  but 
T\^as  in  doubt  as  to  the  commissioners  and 
the  officer,  and  "leave  was  therefore  re- 
served to  move  for  a  nonsuit  generally, 
and  on  the  other  hand  for  a  verdict 
against  all  the  defendants  except"  Morley. 
The  court  of  queen's  bench,  per  Lord  Dex- 
MAN,  C.  J.,  held  that  they  were  all  liable 
except  Morley. 

Such  are  the  authorities  upon  which  we 
are  asked  to  sustain  the  nonsuit.  It  will 
be  observed  thatnoneof  the  cases  cited  go 
to  the  extent  of  holding  that  a  warrant 
void  upon  its  face  is  a  defense  in  an  action 
of  false  imprisonment  for  one  who  partici- 
pated in  making  the  arrest.  On  the  con- 
trary, two  of  the  cases  squarely  hold  that 
such  void  warrant  is  no  protection  to 
such  a  person  in  such  an  action.  Had  the 
defendant  donenothing  more  than  to  have 
sworn  to  the  complaint  before  the  justice, 
he  would  not,  under  these  authorities,  have 
been  liable  in  this  action.  But  here  there 
is  some  evidence  tending  to  prove  that 
after  the  warrant  was  issued  the  defend- 
ant did  participate  in  making  the  arrest. 
The  distinction    between  false  Imprison- 


90 


LAW  OF  TORTS. 


ment  and  malicious  prosecution  was  indi- 
cated in  Murphy  v.  Martin,  58  Wis.  279,  16 
N.  W.  Rep.  603.  In  that  case  it  was  held 
that  the  fact  that  the  warrant  upon  which 
the  arrest  was  made  was  void  on  its  face 
was  not  available  to  the  plaintiff  in  an  ac- 
tion for  malicious  prosecution,  but  onljMn 
an  action  for  false  imprisonment.  If  the 
imprisonment  is  under  legal  process,  but 
the  action  has  been  commenced  and  car- 
ried on  maliciously  and  without  probable 
cause,  it  is  malicious  prosecution.  Id.; 
Elsee  V.  Smith,  2  Chit.  304;  Nebenzahl  v. 
Townsend,  10  Daly,  236;  Brown  v.  Chad- 
sey,  39  Barb.  260-263.  In  such  an  action 
the  imprisonment  cannot  be  false,  for  it  is 
upon  lawful  process,  and  hence  by  lawful 
authority.  False  imprisonment,  on  the 
other  hand,  is  a  trespass  committed 
against  a  person  by  unlawfully  arresting 
and  imprisoning  him  without  any  legal 
authority.  Id.;  2  Add.  Torts,  798;  Bour- 
den  v.  Alio  way,  11  Mod.  ISO;  Burns  v. 
Erben,  40  N.  Y."463;  Lock  v.  Ash  ton,  12  Q. 
B.  871.  Thus  the  arrest  of  the  riglit  per- 
son by  the  wrong  name,  through  a  mis- 
nomer in  the  process,  without  an  allega- 
tion that  the  true  name  is  unknown,  is 
false  imprisonment.  Hoyev.Bush,  1  Man. 
&  G.  775;  Scheer  v.  Keown,  29  Wis.  586. 
Where,  in  an  action  for  false  imprison- 
ment, the  arrest  and  detention  are  admit- 
ted, and  the  onl^'  justification  relied  upon 
by  a  defendant  having  participated  there- 
in is  that  such   arrest  and   detention  were 


under  a  warrant  issued  bj'  a  magistrate, 
it  must  appear,  in  order  to  be  available, 
that  such  warrant  was  valid  upon  itsface. 
West  v.  Smallwood,  supra;  Carratt  v. 
Morley,  supra;  Grumon  v.  Raymond,  1 
Conn.  40;  Poulk  v.  Slocum,  3  Blackf.  421; 
Vaughn  v.  Congdon,  56  Vt.  Ill ;  Hoye  v. 
Bush,  1  Man.  &  G.  775;  Blythe  v.  Tomp- 
kins, 2  Abb.  Pr.  468;  Flack  v.  Harrington, 
12  Amer.  Dec.  170;  Gold  v.  Bissell,  1  Wend. 
210,  19  Amer.  Dec.  480;  Floyd  v.  State,  54 
Amer.  Dec.  250;  Mitchell  v.  State.  Id.  253, 
and  notes  to  cases;  Smith  v.  Shaw,  12 
Johns.  257;  Miller  v.  Adams,  52  N.  Y.  409; 
Abbott  V.  Booth,  51  Barb.  546;  Harwood 
v.  Siphers,  70  Me.  464;  Gorton  v.  Frizzell, 
20  111.  291;  Sheldon  v.  Hill,  33  Mich.  171; 
Green  v.  Elgie,  5  Q.  B.  99.  There  must 
not  only  be  a  jurisdiction  of  the  subject- 
matter,  but  also  a  jurisdiction  of  the 
process.  Grumon  v.  Raymond,  supra; 
Vaughn  v.  Congdon,  supra.  A  warrant 
absolutely  void  upon  its  face,  as  the  one 
before  us  is  conceded  to  be,  is  necessarily 
a  nullity, — mere  waste  paper,— and  hence, 
in  an  action  of  false  imprisonment,  can 
afford  no  protection  to  one  participating 
in  making  an  arrest  under  it. 

The  evidence  tending  to  show  that  the 
defendant  participated  in  making  the  ar- 
rest after  the  warrant  was  issued  is  weak, 
but  we  think  it  was  sufficient  to  take  the 
case  to  the  jurj-.  The  judgment  of  the 
circuit  court  is  reversed,  and  the  cause  is 
remanded  for  a  new  trial. 


(See,  also,  Emery  v.  Hapgood,  7  Gray,  55;  Gold  v.  Bissell,  1  Wend.  310;  Blythe  v.  Tompkins,  2  Abb. 
Pr.  468.) 


-  Arrest  upon  irregular  process — Difference  between  "irregular- 
ity" and  "error." 


(103  N.  Y.  84,  S  N.  E.  Rep.  251.) 

Fischer  v.  L.\ngbein  et  ah 

(Court  of  Appeals  of  New  York.     Oct.  5,  1886. ) 

1.  False  Imprisonment — Arrest  under  Void  or 

Irregular  Process. 
The  liability  of  an  attorney  who  causes  the  is- 
sue of  void  or  irregular  process,  for  loss  or  in 
jury  thereby  occasioned  to  the  party  against 
whom  it  is  enforced,  attaches,  in  the  case  of  void 
process,  when  the  wrong  is  committed,  no  pre- 
liminary proceeding  to  vacate  or  set  it  aside  be- 
ing necessary  to  the  maintenance  of  an  action. 
Process,  however,  that  a  court  has  general  juris- 
diction to  award,  but  which  is  irregular  by  rea- 
son of  the  non-performance  by  the  party  procur- 
ing it  of  some  preliminary  requisite,  or  of  the 
existence  of  some  fact  not  disclosed  in  his  appli- 
cation therefor,  must  be  regularlj'  vacated  or  an- 
nulled by  an  order  of  the  court  before  an  action 
can  be  maintained  for  damages  occasioned  by  its 
enforcement. 

2.  Same. 

When  a  court  is  called  upon  to  adjudicate  upon 
doubtful  questions  of  law,  or  determine  as  to  in- 
ferences to  be  drawn  from  circumstances  reason- 
ably susceptible  of  different  interpretations  or 
meanings,  and  calling  for  the  exex'cise  of  the  ju- 
dicial function  in  their  determination,  an  order 
or  process  based  on  its  decision,  although  after- 
wards vacated  or  set  aside  as  erroneous,  is  not 
void,  nor  does  it  subject  the  party  procuring  it 
to  an  action  for  damages  thereby  inflicted. 

3.  Same. 

The  power  of  a  court  to  entertain  jurisdiction 
of  an  action  or  proceeding  does  noi  depend  upon 


the  existence  of  a  substantial  cause  of  action, 
but  upon  the  performance  by  the  party  of  the 
prerequisites  authorizing  it  to  determine  whether 
one  exists  or  not. 

4.  Same — Commitment  for  Contempt. 

In  proceedings  by  the  defendants  in  an  action 
to  punish  the  plaintiff  therein  for  contempt,  all 
the  facts  constituting  the  alleged  contempt  were 
undisputed,  and  were  presented  to  the  court  hav- 
ing jurisdiction  of  the  proceedings  for  its  con- 
sideration. On  the  hearing  it  was  conceded  that 
the  plaintiff  had  disobeyed  an  order  of  the  court, 
and  the  only  question  was  whether  such  disobe- 
dience defeated,  impaired,  impeded,  or  prejudiced 
any  right  or  remedy  of  the  defendants.  The  court 
decided  that  plaintiff  was  guilty  of  contempt, 
and  ordered  him  to  be  committed;  but  its  order 
was  reversed  on  appeal  as  erroneous  in  respect 
of  the  question  of  law.  Held,  that  such  error  did 
not  affect  the  jurisdiction  of  the  court,  nor  ren- 
der the  commitment  void,  and  plaintiff  could  not 
maintain  an  action  for  false  imprisonment  for 
his  arrest  and  imprisonment  under  the  commit- 
ment. 

5.  Same— Attorneys  Opposing  Motion  for  Dis- 

charge. 
Pending  the  appeal  from  the  order  adjudging 
the  plaintiff  guilty  of  contempt,  motions  were 
made  for  his  discharge,  on  the  ground  that  he 
had  complied  with  the  terms  of  his  commitment, 
which  were  opposed  by  the  attorneys  for  the  de- 
fendants, and  were  denied  by  the  court.  Held, 
that  defendants'  attorneys  were  not  thereby  ren- 
dered liable  to  an  action  by  the  plaintiff  for  false 
imprisonment  because  of  his  imprisonment  after 
such  alleged  compliance  with  the  commitment. 


FALSE  IMPRISONMENT. 


91 


Appeal  from  supreme  court,  general 
term,  first  depai'tment. 

Action  by  John  Fischer  against  George 
F.  Langbein  and  J.  C.  Julius  Langbein 
for  false  imprisonment.  Defendants  were 
the  attorneys  for  the  defendants  in  a 
previous  action  brought  by  the  plaintiff, 
John  Fischer,  for  the  dissolution  of  an 
unincorporated  association.  In  that  ac- 
tion an  order  of  reference  was  made,  in 
which  was  inserted,  with  the  consent 
of  plaintiff,  a  provision  that  plaintiff 
should  pay  the  costs  of  the  reference  if  the 
referee  should  find  in  favor  of  defendants 
as  to  certain  questions.  The  referee  did 
so  find,  but  plaintiff  neglected  to  take  up 
his  report  and  pay  the  fees.  Thereupon 
the  defendants'  attorneys,  defendants  in 
this  action,  procured  an  order  that  plain- 
tiff pay  such  fees  within  three  days,  or 
show  cause  why  he  should  not  be  com- 
mitted for  contempt;  and,  on  a  hearing 
upon  the  return  of  the  order  to  show 
cause,  the  court  decided  that  plaintiff  was 
guilty  of  contempt,  and  ordered  that  a 
commitment  issue,  which  was  done,  and 
plaintiff  was  committed  to  jail  thereon. 
The  order  for  the  commitment  was  after- 
wards reversed,  on  appeal,  and  thereaft- 
er plaintiff  brought  this  action  against  de- 
fendants for  their  participation  as  attor- 
neys in  said  proceedings.  Plaintiff's  com- 
plaint was  dismissed  at  the  trial,  and 
judgment  for  defendants  was  entered 
thereon,  which  was  afiirraed  by  the  gener- 
al term  on  appeal.  Fi*om  the  judgment 
of  the  general  term  plaintiff  appealed. 

Samuel  Hand,  for  appellant.  George  F. 
Langbeiu  and  J.C.Julius  Langbein,  in  pro. 
per.,  and  Jesse K.  Furlong,  for  respondents. 

RuGER,  C.  J.  It  cannot  be  disputed  but 
that  an  attorney  who  causes  void  or  ir- 
regular process  to  be  issued  in  an  action, 
which  occasions  loss  or  injury  to  a  party 
against  whom  it  is  enforced,  is  liable  for 
the  damages  thereby  occasioned.  In  the 
case  of  void  process  the  liability  attaches 
when  the  wrong  is  committed,  and  no 
preliminary  proceeding  is  necessary  to 
vacate  or  set  it  aside  as  a  condition  to 
the  maintenance  of  an  action.  Process, 
however,  that  a  court  has  general  juris- 
diction to  award,  but  which  is  irregular 
by  reason  of  the  non-performance  by  the 
party  procuring  it  of  some  preliminary 
requisite,  or  the  existence  of  some  fact  not 
disclosed  in  his  application  therefor, 
must  be  regularly  vacated  or  annulled  by 
an  order  of  the  court  before  an  action  can 
be  maintained  for  damages  occasioned  by 
its  enforcement.  Day  v.  Bach,  S7  N.  Y.  oG. 
In  such  cases  the  process  is  considered  tiie 
act  of  the  party,  and  not  that  of  the  court, 
and  he  is  therefore  made  liable  for  the 
consequences  of  his  act.  Void  process  is 
such  as  the  court  has  no  power  to  award, 
or  has  not  acquired  jurisdiction  to  issun 
in  the  particular  case,  or  which  does  not, 
in  some  material  respect,  comply  in  form 
with  the  legal  requisites  of  such  process, 
or  which  loses  its  vitality  in  consequence 
of  non-compliance  with  a  condition  subse- 
quent, obedience  to  which  is  rendered  es- 
sential. Irregular  process  is  such  as  a 
court  has  general  jurisdiction  to  issue, 
Jbut  which  is  unauthorized  in  the  particu- 


lar case  by  reason  of  the  existence  or  non- 
existence of  some  fact  or  circumstance 
rendering  it  improper  in  such  a  case.  In 
all  cases  where  a  court  has  acquired  juris- 
diction in  an  action  or  proceeding,  its  or- 
der made  or  judgment  rendered  therein, 
is  valid  and  enforceable,  and  affords  pro- 
tection to  all  persons  acting  under  it, 
although  it  may  be  afterward  set  aside 
or  reversed  as  erroneous.  Simpson  v. 
Hornbeck,  3  Lans.  53.  Errors  commit- 
ted by  a  court  upon  the  hearing  of  an 
action  or  proceeding  which  it  is  author- 
ized to  hear,  but  not  affecting  any  juris- 
dicti(jnal  fact,  do  not  invalidate  its  or- 
ders, or  authorize  a  party  to  treat  them  as 
void,  but  can  be  taken  advantage  of  only 
by  appeal  or  motion  in  the  original  ac- 
tion.    Day  V.  Bach,  supra. 

There  is  no  claim  made  that  the  order 
and  commitment  under  which  the  impris- 
onment complained  of  in  this  case  was 
effected,  was  void,  or  even  irregular,  ex- 
cept for  the  alleged  erroneous  determina- 
tion made  by  the  special  term  upon  the 
merits  of  the  application.  This  determi- 
nation consisted  in  holding  that  a  con- 
tempt had  been  committed  by  the  plain- 
tiff, while,  upon  appeal,  this  court  held 
otherwise.  All  of  the  facts  constituting 
the  alleged  contempt  were  undisputed, 
and  were  presented  to  the  special  term  for 
its  consideration  upon  the  hearing.  After 
hearing  the  parties  it  decided  that  a  con- 
tempt had  been  committed,  and  ordered 
the  imprisonment  complained  of.  It  was 
conceded  on  that  hearing  that  the  plaintiff 
has  disobeyed  an  order  of  the  court,  and  the 
only  question  presented  for  its  considera- 
tion was  whether  such  disobedience  "de- 
feated, impaired,  impeded,  or  prejudiced" 
a  right  or  remedy  of  the  defendants.  Up- 
on the  appeal  to  this  court  it  was  held 
that  the  case  did  not  clearly  show  that 
any  right  or  remedy  of  the  defendants  had 
been  defeated,  impaired,  impeded,  or  preju- 
diced by  the  disobedience  alleged,  and  the 
order  adjudging  the  plaintiff  guilty  of  a 
contempt  was  for  that  reason  reversed 
as  erroneous.  Fischer  v.  Raab,  81  N.  Y. 
235.  A  simple  question  of  law  was  thus 
presented  to  the  court  as  to  whether  all 
of  the  elements  constituting  the  offense 
of  contempt  appeared  on  tiie  application 
for  the  commitment.  Whether  they  did 
or  did  not  in  no  sense  constituted  a  ju- 
risdictional question.  The  court  conced- 
edly  had  jurisdiction  of  the  parties  and 
the  subject-matter  of  the  application,  and 
we  think  authoritj^  to  determine  whether 
a  contempt  had  been  committed  or  not ; 
and  the  question  for  its  consideration  was 
whether  the  facts  of  the  case  brought  it 
within  the  statutory  definition  of  a  "con- 
tempt." An  erroneous  decision  of  that 
question  in  no  sense  affected  the  jurisdic- 
tion of  the  court  over  the  subject-matter 
of  the  application.  In  a  similar  case  it 
was  said  by  this  court  that  the  fact  that 
a  justice  of  the  peace  "had  jurisdiction  of 
the  person  of  the  plaintiff,  and  of  the  sub- 
ject-matter then  pending,  did  not  give 
him  judicial  authority  to  adjudge  her 
guilty  of  a  contempt,  and  to  imprison  her 
therefor.  To  have  that  authority  there 
must  hare  arisen  before  him  facts  which 
gave    him   power  to  consider   the    ques- 


LAW  OF  TORTS. 


tion -whether  there  had  been  a  contempt 
committed  by  her.  When  facts  arose 
which  gave  him  that  power,  he  had  a 
right  to  adjuflicate  upon  them,  and  is  not 
liable  to  an  action,  though  he  may  have 
held  erroneously  as  matter  of  law." 
Rutherford  v.  Holmes,  66  N.  Y.  370. 

In  the  present  case  the  court  made  an 
order,  upon  the  application  of  the  plain- 
tiff, referring  a  certain  disputed  question 
of  fact  to  a  referee  to  hear  and  determine, 
and,  in  case  such  report  was  against  the 
plaintiff,  that  he  should  pay  the  referee's 
fees  Incurred  thereon.  The  plaintiff  can- 
not question  the  validity  of  this  order,  fi)r 
it  was  made  at  his  request,  and  upon  his 
stipulation  to  pay  the  fees  in  the  event 
provided  for.  The  order  was  therefore 
lawful,  and  such  as  the  court  had  a  right 
to  make  under  the  circumstances.  There- 
port  of  the  referee  being  against  the  plain- 
tiff, he  was  required  to  pay  the  fees,  and 
take  it  up;  but  this  he  neglected  and  re- 
fused to  do.  For  this  refusal  he  was  ad- 
judged guilty  of  contempt.  The  disobedi- 
ence of  its  order  by  the  plaintiff  gave  the 
court  jurisdiction  of  the  subject-matter, 
and  called  upon  it  to  determine  whether 
a  contempt  had  been  committed  or  not. 
The  right  to  adjudicate  upon  this  question 
did  not  depend  upon  the  fact  whether  the 
plaintiff  was  guilty  of  a  contempt,  but 
whether  a  case  had  been  made  calling  for 
an  adjudication  upon  that  question.  The 
power  of  the  court  to  entertain  jurisdic- 
tion of  an  action  or  proceeding  does  not 
depend  upon  the  existence  of  a  sustainable 
cause  of  action,  but  upon  the  performance 
by  the  party  of  the  prerequisites  authoriz- 
ing it  to  determine  whether  one  exists  or 
not. 

In  Harman  v.  Brotherson,  1  Denlo,  537, 
thn  defendant,  a  judicial  officer,  had 
awarded  a  capias  upon  affidavits  which 
did  not  disclose  such  a  cause  of  action  as 
subjected  the  defendant  to  arrest  therefor. 
He  was,  however,  arrested  and  impris- 
oned, and  in  an  action  against  the  judge 
for  false  imprisonment  it  was  held  that  he 
was  exempted  from  liability  by  reason  of 
the  judicial  character  of  his  determination. 

In  Landt  v.  Hilts,  19  Barb.  283,  a  county 
judge  was  prosecuted  for  false  imprison- 
ment for  granting  an  order  of  arrest 
w'hich  was  afterwards  vacated  upon  the 
ground  that  the  affidavit  upon  which  it 
was  founded  did  not  show  a  sufficient 
cause  for  arresting  the  party.  It  was 
held,  however,  that  the  "decision  and  the 
order  protect  the  party  applying  for  it, 
and  the  attorney  and  all  persons  acting 
in  obedience  to  the  order;"  that  the  affi- 
davit jjresented  "a  state  of  facts  which 
called  upon  the  officer  to  pass  judicially 
upon  the  question,  and  to  determine 
whether  a  case  for  an  order  was  made  out 
or  not."  "It  presents,  to  say  the  least,  a 
colorable  case,  and  that  is  enough  to  pro- 
tect the  officer  who  issued  it."  It  was  fur- 
ther said  "that  the  doctrine  that  the  ju- 
dicial officer  is  protected  whenever  he  has 
jurisdiction,  and  enough  is  shown  to  call 
upon  him  for  a  decision,  even  though  he 
err  grossly  and  even  intentionally,  has 
long  been  firmly  established.  Upon  the 
same  principle  of  public  policy,  parties 
who  in  good  faith  institute  the  proceed- 


ings, and  act  under  and  in  accordance  with 
judicial  determination,  should  be  f)rotect- 
ed  from  accountability  as  trespassers 
whenever  the  officer  is  entitled  to  protec- 
tion." This  case  is  largely  and  approv- 
ingly quoted  from  in  Marks  v.  Townsend, 
97  N.  Y.  590,  599. 

In  Miller  v.  Adams,  7  Lans.  133,  affirmed 
in  this  court,  (52  N.  Y.  409,)  the  defendant 
was  prosecuted  for  false  imprisonment  in 
procuring  an  attachment  for  contempt 
against  a  third  party  for  not  appearing 
before  the  judge  in  supplemental  proceed- 
ings, in  obedience  to  an  order  requiring 
him  to  do  so.  The  affidavit  upon  which 
the  attachment  was  issued  was  held,  upon 
appeal,  to  be  defective,  and  not  to  show 
the  existence  of  the  contempt  alleged.  It 
was  held,  however,  that  it  constituted  a 
protection  as  well  to  the  officer  issuing  it 
as  to  the  party  procuring  it;  that  the  offi- 
cer issuing  the  attachment  had  "jurisdic- 
tion of  the  matter,  and  acted  judicially  in 
making  the  order,  and  it  is  entirely  clear 
that  he  cannot  be  made  answerable  as  a 
trespasser  for  an  error  in  judgment.  " 

It  seems  to  us  that  the  case  of  Williama 
V.  Smith,  108  E.  C.  L.  596,  is  undistinauish- 
able  in  principle  from  this.  As  concisely 
stated  by  Justice  ERLE.it  was  as  follows: 
"The  master  of  the  rolls  decided  on  the 
facts  that  Williams  was  guilty  of  con- 
tempt in  not  obeying  the  order.  Such  is 
the  judgment  of  the  master  of  the  rolls  on 
the  very  facts  between  the  parties.  The 
legal  inference  which  that  learned  judge 
drew  from  the  facts  which  were  presented 
to  him  on  the  part  of  Williams  was  that 
he  was  guilty  of  a  contempt.  Upon  ap- 
peal the  lords  justices  were  of  opinion  that 
the  master  of  the  rolls  came  to  an  errone- 
ous conclusion,  and  they  reversed  his  de- 
cision. That  is  a  totally  different  thing 
from  setting  aside  the  attachment  for  ir- 
regularity in  the  proceedings. "  It  was 
held  that  the  decision  of  the  master  of  the 
rolls  was  a  judicial  determination  that 
protected  the  parties  acting  under  it,  as 
well  as  the  officers  making  it. 

The  rule  to  be  deduced  from  these  au- 
thorities seems  to  be  that  when  a  court  is 
called  upon  to  adjudicate  upon  doubtful 
questions  of  law,  or  detei'mine  as  to  infer- 
ences to  be  drawn  from  circumstances  rea- 
sonably susceptible  of  different  interpre- 
tations or  meanings,  and  calling  for  the 
exercise  of  the  judicial  function  in  their  de- 
termination, its  decision  thereon  does  not 
render  an  order  or  process  based  upon  it, 
although  afterwards  vacated  or  set  aside 
as  erroneous,  void,  or  subject  the  party 
procuring  it  to  an  action  for  damages 
thereby  inflicted.  Where  the  jurisdiction 
of  the  court  is  made  to  depend  upon  the 
existence  of  some  fact  of  which  there  is  an 
entire  absence  of  proof,  it  has  no  author- 
ity to  act  in  the  premises;  and  if  it,  never- 
theless, proceeds  and  entertains  jurisdic- 
tion of  the  proceeding,  all  Of  its  acts  are 
void,  and  afford  no  justification  to  the 
parties  instituting  them  as  against  parties 
injuriously  affected  thereby.  But  if  the 
facts  presented  to  the  court  call  upon  it 
for  the  exercise  of  judgment  and  reason, 
upon  evidence  which  might  in  its  consider- 
ation affect  different  minds  differently,  a. 
judicial  question  is  presented,  which,  how* 


FALSE  IMrRISOXMENT. 


93 


ever  decided,  does  not  render  either  party 
or  tlie  court  making  it  liablefor  tlie  conse- 
-quences  of  its  action. 

It  is  furtlier  claimed  that  the  defendants 
made  themselves  liable  in  this  action  by 
refusing  to  consent  to  the  discharge  of  the 
plaintiff  b^'  the  sheriff  after  he  had  com- 
plied, as  it  Is  alleged,  with  the  terms  of  the 
commitment,  and  for  opposing,  before  the 
special  term,  proceedings  taken  for  his 
discharge.  These  proceedings  all  took 
place  before  it  was  finally  determined  that 
the  plaintiff  was  not  guilt}'  of  a  contempt 
in  refusing  to  obey  the  order  referred  to, 
and.  so  far  as  anything  appearing  in  this 
record  shows,  when  the  defendants  natu- 
rally believed  that  the  plaintiff  was  right- 
fully im])risone(l  thereunder.  The  relief 
claimed  was  denied  by  the  courts  before 
whom  they  were  taken,  and  it  must  here 
be  assumed  that  it  was  rightfully  denied, 
for  the  reason  tiiat  the  plaintiff  had  not 
complieil  with  the  terras  of  the  order  en- 
titling him  to  a  discharge.  If  the  defend- 
ants were  not  liable  for  damages  for  the 
original  imprisonment,  it  is  quite  certain 


that  they  were  not  responsible  for  the  ac- 
tion of  the  sheriff  or  the  court  in  continu- 
ing it.  No  obligation  rested  upon  the  de- 
fendants to  consent  to  or  procui-e  the  dis- 
charge of  the  plaintiff,  as  the  right  to  such 
relief  depended  solely  upon  his  compliance 
with  the  terms  of  the  order  committing 
him. 

Some  claim  is  made  that  the  commit- 
ment was  void  for  not  containing  the 
statement  that  the  disobedience  referred 
to  as  thecontempt  had  defeated, impaired, 
impeded,  or  prejudiced  some  right  or 
remedy  of  the  defendants  in  the  action. 
Not  only  the  order  and  affidavit  upon 
which  it  was  founded,  but  the  commit- 
ment itself,  stated  in  detail  the  proceedings 
which  it  was  claimed  the  disobedience  in 
question  affected,  and  presented  all  of  the 
facts  upon  which  the  judgment  of  the 
court  in  awarding  the  commitment  was 
based,  and  fully  complied  with  the  require- 
ments of  the  rule  in  respect  to  thecontents 
of  the  commitment. 

The  judgment  of  the  court  below  should 
be  affirmed,  with  costs.    All  concur. 


(See,  also,  Everett  v.  Henderson,  146  Mass.  89, 14  N.  E.  Rep.  932,) 


Arrest  -without  -warrant,  -where  a  -warrant  is  by  la-w  necessary. 
A.   In  cases  of  felony. 


(3  Wend.  350.) 
HoLLEY  V.  Mix  et  ah,  (in  part.) 
(Supreme  Court  of  New  York.    Oct.,lS29.) 
False  Impkisonmext — Arrest  without  Warrant 
— Feloxt. 
The  arrest  of   a   person  who  has   committed   a 
felony  may  be  justified   by  any  person  without  a 
warrant;  and  an  arrest  of  an  innocent  person  by 
a  private   individual  is  excused  if  felony  was  in 
fact  committed,  and  there  is  reasonable  ground 
to  suspect  the  person  arrested.     But,  if  no  felony 
was  committed,  an   arrest  by  a   private   individ- 
ual  without   a   wai'rant  is    illegal,  although   an 
oflQcer  is  justified  in  making  such  an  arrest  if  he 
act  upon  information  upon  which  he   has  reason 
to  rely. 

Motion  for  a  new  trial. 

Action  by  Holley  against  D  Mix  and  I. 
I.  Clute  for  false  imprisonment.  It  ap- 
peared that  Stephen  Mix,  a  brother  of  the 
defendant  D.  Mix,  procured  from  a  justice 
of  the  peace  a  warrant  for  the  arrest  of 
plaintiff  on  a  charge  of  having  feloniously 
stolen  a  bank-note  of  the  amount  of  flO, 
belonging  to  defendant  D.  Mix;  that  Ste- 
phen Mix  procured  himself  to  be  deputed 
to  serve  the  warrant,  and  pursued  and 
overtook  plaintiff,  but,  having  lost  the 
warrant,  merely  requested  [jlaintiff  to  re- 
turn, which  plaintiff  refused  to  do;  that 
Stephen  Mix  then  procured  the  issue  of 
another  warrant  by  another  justice  of  the 
peace  of  the  same  countj',  on  the  same 
charge,  against  John  Doe,  plaintiff's  name 
not  being  known  to  him,  and  delivered 
the  warrant  to  the  defendant  Clute.  who 
was  a  constable,  and  informed  Clute  that 
plaintiff  had  stolen  a  .?10  bill  belonging  to 
defendant  D.  Mix;  that  Clute  and  Stephen 
Mix  again  pursued  and  overtook  plaintiff; 
that  Stephen  Mix,  then  said  he  wanted 
plaintiff  as  a  witness  in  relation  to  a  $10 


bill  dropped  in  a  tailor's  shop,  but  Clute 
did  not  hear  him  say  so ;  that  Clute  ar- 
rested plaintiff,  and  carried  him  before  the 
justice  who  had  issued  the  second  n-ar- 
rant;  that  said  justice  then,  on  plaintiff's 
stating  his  name,  altered  the  warrant  by 
inserting  plaintiff's  name,  and  redelivered 
it  to  the  constable,  and  directed  him  to 
keep  plaintiff  in  custody'  until  the  next 
morning,  when  he  would  be  tried  by  a 
special  sessions,  but  did  not  appoint  any 
time  or  place  for  the  holding  of  such  spe- 
cial sessions,  or  designate  or  summon  any 
justices  to  act  with  him  in  holding  the 
same,  and  said  justice  heard  no  more  of 
the  matter;  that  the  constable,  Stephen 
Mix,  and  plaintiff  then  went  to  the  shop 
of  defendant  D.  Mix,  and  thereafter  the 
constable  took  plaintiff  to  a  tavern,  into 
a  back  room,  from  which  the  constable 
afterwards  came,  and  handed  §10  to  de- 
fendant D.  Mix,  who  was  in  the  hall  of  the 
tavern  ;  and  that  the  constable  and  D.  Mix 
had  stated  that  plaintiff  had  paid  the 
money  and  the  con.stable's  costs  to  set- 
tle the  matter.  There  was  no  evidence 
sufficient  to  establish  that  any  felony  had 
been  committed. 

The  judge  charged  the  jury  thatthe  war- 
rant issued  by  the  second  justice  was  not, 
before  the  insertion  of  plaintiff's  name 
therein,  any  protection  to  the  officer; 
that  an  officer  has  no  right  to  arrest  a 
person  upon  a  criminal  charge  witliout 
warrant,  and  upon  information  only,  ex- 
cept in  cases  where  there  is  not  time  tn  ob- 
tain a  warrant,  and  where  an  escape 
would  take  place  unless  the  arrest  was 
made,  but  that  in  this  case,  there  being 
sufficient  time  to  obtain  a  warrant,  the 
constable  was  not  justified  to  arrest  up- 
on  information;  that  if  the  jury  believed 


94 


LAW  OF  TORTS. 


that  the  defendants  acted  in  concert  in 
taking  the  plaintiff  into  the  back  room  of 
the  tavern,  and  that  they  intended  to 
keep  him  in  custody,  and  to  work  upon 
his  fears  for  the  purpose  of  extorting 
money  from  him,  they  were  both  liable, 
and  a  verdict  oughtto  be  rendered  against 
them.  The  jury  found  a  verdict  for  plain- 
tiff, and  assessed  damages  against  Clute 
at  six  cents,  and  against  D.  Mix  at  .f  25, 
Defendants  moved  on  a  bill  of  exceptions 
to  set  aside  the  verdict,  and  for  a  new 
trial. 

H.  R.  Storrs,  for  plaintiff.  A.  C.  Pai^e, 
for  defendants. 

Savage,  C.  J.  There  is  certainly  an  in- 
accuracy in  the  charge  of  the  judge,  as 
stated  in  the  bill  of  exceptions.  The  judge 
is  represented  as  laying  down  the  broad 
proposition  that  a  felon  can  in  no  case  be 
arrested  without  warrant,  when  there  is 
time  to  obtain  one.  My  understanding  of 
the  law  is  that,  if  a  felony  has  in  fact  been 
committed  by  the  person  arrested,  the  ar- 
rest may  be  justified  bi^any  person  with- 
out warrant,  whether  there  is  time  to  ob- 
tain one  or  not.  If  an  innocent  person  is 
arrested  upon  suspicion  by  a  private  in- 
dividual, such  individual  is  excused  if  a  fel- 
ony was  in  fact  committed,  and  there 
was  reasonable  ground  to  suspect  the 
person  arrested.  But  if  no  felony  was 
committed  by  any  one,  and  a  private  in- 
dividual arrest  without  a  warrant,  such 
arrest  is  illegal,  though  an  officer  would 
be  justified  if  he  acted  upon  information 
from  another  which  he  had  reason  to  rely 
on.  These  principles  will  be  found,  sub- 
stantially, in  1  Chit.  Grim.  Law,  15. 

The  case  of  Samuel  v.  Payne,  Doug.  359, 
supports  the  distinction  in  the  above 
proposition.  In  that  case  a  search-war- 
rant was  taken  out  by  Hall,  one  of  the 
defendants,  upon  a  charge  of  theft;  but 
the  warrant  did  not  authorize  the  arrest. 
The  goods  were  not  found,  but  the  plain- 
tiff was  arrested,  and  carried  before  a 
magistrate  and  discharged.  On  the  trial, 
Lord  Mansfield  laid  down  the  law  that, 
if  a  felony  had  been  committed,  any  man, 
upon  reasonable,  probable  ground  of  sus- 
picion, may  justify  apprehending  the  sus- 
pected person,  and  carrying  him  before  a 
magistrate;  but,  if  no  felony  has  been 
committed,  such  arrest  cannot  be  justi- 
fied by  anybody.  The  court,  however, 
thought  the  rule  too  narrow,  and  said 
that,  if  any  person  charged  another  with 
felony,  and  desire  an  officer  to  take  him  in 
custody,  such  charge  will  justify  the  offi- 
cer, though  no  felony  was  committed,  but 
the  person  making  such  charge  will  be 
liable;  and  upon  anew  trial  a  verdict  was 
found  against  Hall,  but  in  favor  of  the 
officers.  A  similar  decision  was  made  in 
Hohbs  V.  Branscomb,  3  Camp.  420.  where 
the  plaintiff  had  been  improperly  arrested 
upon  a  charge  of  felony  where  no  felony 
was  committed.  For  the  defendants  the 
case  of  Samuel  v.  Payne  was  relied  on, 
and  a  nisi  prius  decision  of  Mr.  Justice 
BuLLER.  in  which  he  held  that,  "if  a 
peace-officer  of  his  own  head  takes  a  per- 
son into  custody  on  suspicion,  he  must 
prove  that  there  was  such  a  crime  com- 
mitted ;  but,  if  he  receives  a  person  into 


custody  on  a  charge  preferred  by  another 
of  felony  or  breach  of  the  peace,  then  he  is 
to  be  considered  a  mere  conduit,  and,  if  na 
felony  or  breach  of  the  peace  was  commit- 
ted, the  person  who  preferred  the  charge 
alone  is  answerable."  Lord  Ellexbor- 
OUGH  said  this  rule  appeared  to  be  reason- 
able, and  that  injurious  consequences 
might  follow  if  peace-officers,  under  such 
circumstances,  were  personally  responsi- 
ble, should  it  turn  out  that,  in  point  of 
law,  no  felony  had  been  committed.  It 
was  not  contended  upon  the  trial  that  a 
felony  nad  been  committed;  an  action 
would  therefore  lie  against  Stephen  Mix, 
but  not  against  the  constable,  Clute,  pro- 
vided the  arrest  was  made  with  a  bona, 
Grle  intention  of  bringing  a  supposed  of- 
fender to  justice. 


(53  N.  Y.  14.) 

Carl  v.  Ayers. 

{Court  of  Appeals  of  New  York.    May  20, 1873.  > 

False  Imprisoxmext — Arrest  without  Warrant 
— Felony. 
Although  a  person  is  justified  in  procuring  the 
arrest  of  another  on  a  criminal  charge,  where 
the  apparent  facts  are  such  as  would  lead  a  dis- 
creet and  prudent  person  to  the  belief  that  a  crime 
had  been  committed  by  the  person  charged,  a 
groundless  suspicion,  unwarranted  by  the  conduct 
of  the  accused  or  by  facts  known  to  the  accuser 
when  the  accusation  is  made,  will  not  exempt 
the  latter  from  liability  to  an  innocent  person  for 
causing  his  arrest. 

Appeal  from  supreme  court,  general 
term,  second  department. 

Action  by  Joseph  Carl  against  George 
L.  Ayers  for  malicious  prosecution  in 
causing  the  arrest  and  imprisonment  of 
plaintiff  on  a  charge  of  stealing  or  at- 
tempting to  steal  a  diamond  pin.  The 
evidence  given  by  plaintiff  was  in  sub- 
stance that,  being  on  a  steam-boat,  on 
w^hich  were  also  defendant  and  his  wife 
and  children,  and  his  attention  being  at- 
tracted by  the  severe  coughing  of  one  of 
the  children,  and  intending  to  tell  defend- 
ant of  a  remedy  which  he  knew,  he  went 
to  the  place  where  they  were  sitting,  and, 
being  unable  to  approach  defendant  in 
front,  stepped  behind  him,  and  touched 
him  on  the  shoulder  in  order  to  attract 
his  attention,  and  said  he  wished  to 
speak  with  him;  that  defendant  an- 
swered, "If  you  have  anything  to  say,  say 
it  here;"  that  plaintiff  was  about  to  walk 
away,  but  turned,  and  explained  to  de- 
fendant that  he  merely  wished  to  speak 
to  him  in  regard  to  his  child's  sickness,  to 
which  defendant  answered,  "You  never 
mind  about  my  child;  you  mind  your  own 
business  and  I  will  mind  mine;"  that  soon 
afterwards  defendant  pointed  out  plain- 
tiff to  a  detective  officer,  and  charged 
plaintiff  with  larceny  or  attempt  to  steal 
defendant's  diamond  pin,  and  insisted  on 
plaintiff's  arrest;  that  plaintiff  was  ar- 
rested thereupon,  in  the  presence  of  the 
passengers,  about  half  an  hour  before  the 
boat  landed,  and  was  afterwards  taken 
to  a  station-house  by  the  officer  in  com- 
pany with  defendant,  and  a  charge  of  lar- 
ceny from  the  person  was  preferred  against 
him,    on    which    he  was    imprisoned  all 


FALSE  IMPRISONMENT. 


niffht,  and  the  following  day,  being  Sun- 
day, until  Monday  morning;  and  that  the 
justice  before  whom  he  was  then  brought, 
after  hearing  the  testimony  of  defendant 
and  his  wife,  discharged  plaintiff.  Plain- 
tiff's complaint  was  dismissed  by  the  trial 
judge,  and  judgment  for  defendant  was 
entered  thei'con,  which  was  affirmed  by 
the  general  term  on  appeal.  From  the 
judgment  of  the  general  term  plaintiff  ap- 
pealed. 
Amasa  J.  Parker,  for  appellant. 

Andrews,  J.  The  court  was  not  justi- 
fied in  nonsuiting  the  plaintiff  if  tliere  was 
any  evidence  of  the  want  of  probable 
cause  for  causing  his  arrest  and  imprison- 
ment, or  unless  the  case,  upon  the  whole 
proof,  was  such  that  a  verdict  for  the 
plaintiff  upon  the  issue  would  have  been 
set  aside  by  the  court  as  against  evidence. 
Masten  v.  Deyo,  2  Wend.  424;  Davis  v. 
Hardy,  6  Barn.  &  C.  22.5.  If  the  evidence 
on  the  part  of  the  plaintiff  would  have 
justified  the  jury  in  finding  that  the  de- 
fendant acted  without  probable  cause, 
then,  although  the  proof  on  the  part  of 
the  defendant  tended  to  the  opposite  con- 
clusion, the  nonsuit  was  erroneously 
granted.  There  was  no  independent  or 
conceded  fact  shown  on  the  part  of  the 
defendant  which,  admitting  the  case 
made  by  the  plaintiff,  established  the  ex- 
istence of   probable  cause.     In  considering: 


groundless  suspicion,  unwarranted  by  the 
conduct  of  the  accused,  or  by  facts 
known  to  the  accuser,  when  the  accusa- 
tion is  made,  will  not  exempt  the  latter 
from  liability  to  an  innocent  person  for 
damages  for  causing  his  arrest.  A  man 
has  no  right  to  put  the  criminal  law  in 
motion  against  another,  and  deprive  him 
of  his  liberty,  upon  mere  conjecture  that 
he  has  been  guilty  of  a  crime.  He  cannot 
be  allowed  to  put  a  false  and  unreasonable 
construction  upon  the  conduct  of  another, 
and  then  justify  himself  for  causing  the 
arrest,  by  claiming  that  he  acted  upon  ap- 
pearances. The  application  of  these  fa- 
miliar principles  to  the  facts  in  this  case 
leads  to  a  reversal  of  the  judgment.  It  is 
not  claimed  that  any  larceny  was  com- 
mitted, and  there  was  not  upon  the  plain- 
tiff's narration  of  the  circumstances  any 
ground  for  charging  the  plaintiff  with  an 
attempt  to  commit  a  larceny.  The  case, 
as  made  by  the  plaintiff,  is  this:  While 
upon  the  boat  his  attention  was  attract- 
ed to  the  defendant's  child  by  her  severe 
coughing,  and  he  went  to  the  place  where 
the  defendant  was  sitting  with  his  wife 
and  child,  to  inform  him  of  a  remedy,  and, 
not  being  able  to  pass  in  front  of  the  de- 
fendant, he  went  behind  him,  and  touched 
him  once  or  twice  on  the  shoulder  to  at- 
tract his  attention,  saying  he  wished  to 
speak  with  him.  He  was  roughly  an- 
swered, and  turned  to  leave,  but  turned 
the  propriety  of  the  nonsuit,  the  plaintiff  !  back,  and  stated  to  the  defendant  that  he 


IS  entitled  to  the  concession  that  the 
facts  existed  as  they  appear  in  the  evi- 
dence on  his  part;  and  upon  these  facts, 
aided  by  any  fact  favorable  to  the  plain- 
tiff proved  by  the  defendant,  the  right  of 
the  court  to  nonsuit  is  to  be  determined. 
"Probable  cause,"  which  will  justify  a 
criminal  accusation,  is  defined  to  be  a  rea- 
sonable ground  of  suspicion,  supported  by 
circumstances  sufficiently  strong  in  them- 
selves to  warrant  a  cautious  man  in  his 
belief  that  the  person  accused  is  guilty  of 
the  offense  v,'ith  which  he  is  charged. 
Munns  v.  Dupont,  3  Wash.  C.  C.  37;  Fo- 
shay  V.  Ferguson,  2  Denio,  617;  Bacon  v= 
Towne,  4  Cush.  218.  It  does  not  depend 
upon  the  guilt  or  innocence  of  the  accused, 
or  upon  fact,  whether  a  crime  has  been 
committed.  Baldwin  v.  Weed,  17  Wend. 
224;  Bacon  v.  Towne,  supra.  A  person 
making  a  criminal  accusation  may  act  up- 
on appearances,  and,  if  the  apparent  facts 
are  such  that  a  discreet  and  prudent  per- 
son would  be  led  to  the  belief  that  crime 
had  been  committed  by  the  person 
charged,  he  will  be  justified,  although  it 
turns  out  that  he  was  deceived,  and  that 
the  party  accused  was  innocent.  Public 
policy  requires  that  a  person  shall  be  pro- 
tected who  in  good  faith,  and  upon  rea- 
sonable grounds,  causes  an  arrest  upon 
a  criminal  cliarge,  and  the  law  will  not 
subject  him   to  liability  therefor.    But  a 


intended  to  speak  with  him  about  his 
child,  and  the  defendant  again  replied 
with  great  incivility,  and  soon  afterwards 
caused  the  plaintiff  to  be  arrested  on  the 
charge  of  an  attempt  to  steal  his  dia- 
mond pin.  The  defendant  wore  a  valua- 
ble pin  in  his  shirt  bosom,  but  it  does  not 
appear  that  the  plaintiff  saw  it,  nor  had 
he  touched  the  defendant's  person,  except 
when  he  put  his  hand  upon  his  shoulder. 
Upon  these  facts,  there  was  no  reason- 
able ground  to  suspect  that  the  plaintiff 
had  a  criminal  motive.  His  conduct  was 
neither  unusual  nor  improper.  There  was 
no  act  of  the  plaintiff  which  could  be  con- 
strued as  an  attempt  to  commit  a  crime. 
If  the  defendant  entertained  a  suspicion 
that  the  plaintiff  designed  to  take  his  pin, 
it  was  not  justified  by  the  circumstances. 
The  evidence  on  the  part  of  the  defendant 
materially  conflicted  with  that  of  the 
plaintiff,  but  we  can  consider  only  the  case 
made  by  the  plaintiff,  and  we  are  of  opin- 
ion that  the  evidence  on  his  part  disclosed 
a  want  of  probable  cause  for  the  arrest, 
and  that  the  nonsuit  was  improperly 
granted.  The  judgment  should  be  re- 
versed, and  a  new  trial  ordered,  with  costs 
to  abide  the  event. 

Peckha^i,  Rapallo,  and  Folger,  JJ., 
concur.  Church,  C.  J.,  and  Grover  and 
Allen,  JJ.,  do  not  vote. 


(This  was  really  an  action  for  malicious  prosecution,  but  upon  the  question  as  to  what  constitutes 
reasonable  grounds  for  an  arrest  without  warrant,  it  also  serves  as  a  valuable  illustration  under  the 
law  of  false  imprisonment.) 

(See,  also.  Burns  v.  Eroen,  40  JN.  Y.  463;  Com.  v.  Carey,  13  Cush.  246;  Morley  v.  Chase,  148  Mass. 
S96  9  X  E.  Rep.  767 ;  McCarthy  v.  De  Armit,  99  Pa.  St.  63 ;  Cahill  v.  People,  106  IlL  621 ;  Hogg  v.Ward, 
8  Hurl.  &  N.  417;  Howard  v.  Clarke,  20  Q.  B.  Div.  558.) 


96 


LAW  OF  TORTS. 


B.   In  cases  of  breach  of  the  peace. 


(40  Mich.  576.) 
QuiNX  V.  Heisel. 
{Supreme  Court  of  Mlchkian.    April  22,1879.) 
False  Imprisonment — Arrest  without  Warrant 
—  Breach  of  the  Peace. 
An  officer  has   no   power  to   arrest,  without  a 
warrant,  for  a   past   offense,  not   a   felony,  upon 
information    or   suspicion   thereof.     Nor  will    a 
threat  or  other  indication  of  a  breach  of  the  peace 
justify  an  officer  in  making  an  arrest,  unless  the 
facts  are  such  as  would  warrant  him   in  believ- 
ing an  arrest  necessary  to  prevent   an  immediate 
execution  thereof;  and  this  without   reference  to 
any    past  similar  offense   of   which  the  person 
may  have  been  guilty  before  the   arrival  of  the 
officer. 

Error  to  circuit  court,  Kent  county. 

Action  of  trespass  brought  before  a  jus- 
tice of  the  peace  by  John  C.  Heisel  against 
John  Quinn  for  an  assault  and  battery, 
Quinn  claimed  that  he  was  a  policeman 
of  the  city  of  Grand  Rapids,  and  gave  evi- 
deuce  tending  to  show  that  the  alleged 
assault  consisted  in  forcibly  arresting 
Heisel,  under  an  ordinance  of  that  city, 
for  disorderly  conduct;  there  being  testi- 
mony that  Heisel  used  profane  and  abu- 
sive language  to  men  who  were  lading 
railway  tracks  in  front  of  his  house,  swear- 
ing that  he  would  kill  some  of  them,  and 
approached  them  with  an  axe,  threaten- 
ing to  cut  their  heads  off,  and  raised  the 
axe  as  if  about  to  strike  one  of  them.  He 
resisted  arrest,  and  in  the  struggle  was 
thrown  down  and  handcuffed.  At  the 
trial  in  the  justice's  court  judgment  was 
rendered  for  defendant,  but,  on  appeal  to 
the  circuit  court,  plaintiff  recovered  judg- 
ment. Defendant  brought  error  to  review 
the  judgment  of  the  circuit  court. 

Hughes,  O'Brien  &  Smiley,  for  plaintiff 
in  error.  D.  E.  Corbitt,  for  defendant  in 
■error. 

Marston,  J.  A  careful  examination  of 
the  record  fails  to  show  that  plaintiff  in 
error  has  any  cause  of  complaint.  The 
court  certainly  charged  the  jury  as  to  the 
right  of  an  officer  to  make  arrests  without 
warrant  for  breaches  of  the  peace,  as  fa- 
vorably as  common-law  rules  would  war- 
rant, and  we  are  not  at  present  prepared 
to  say  that  an  ordinance  of  the  city  of 
Grand  Rapids  could  authorize  arrests 
without  process  in  cases  not  justified  by 
common-law  principles.  The  evidence  on 
the  part  of  the  plaintiff  tended  to  show 
that  atthe  timeof  the  arrests  there  was  no 
disturbance,  either  actual  or  threatened, 
while  that  on  the  part  of  defendant  tended 
to  show,  not  merely  a  reasonable  and 
probable  apprehension  of  a  violation  of 
the  ordinance,  but  an  actual  disturbance, 
and  the  jury  was  charged  that  under 
such  circumstances,  if  a  disturbance  was 
found  to  exist,  defendant  was  justified. 
The  court  was  requested  to  charge  that, 
if  there  had  been  a  breach  of  the  peace 
before  defendant  arrived,  and  plain- 
tiff was  about  to  renew  his  disorderly 
conduct,  and  continue  the  said  breach  in 
presence  of  the  officer,  then  defendant 
would  be  justified  in  arresting  him,  even 
though  the  disturbance  had  temi^orarily 


ceased,  before  defendant  came  on  the 
ground;  also  if  the  jury  found,  as  a  mat- 
ter of  fact,  that  plaintiff  had  been  guilty 
of  a  breach  of  the  peace  before  defendant 
came  where  he  was,  and  defendant  knew 
the  fact,  and  had  reasonable  and  probable 
cause  to  believe  plaintiff  was  about  to  re- 
new his  offense,  then  he  was  justified  in 
arresting;  also  that  if  the  officer  received 
information  from  the  by-standors  that 
there  had  been  a  tumult,  and  that  plaintiff 
was  the  cause  of  it,  of  which  fact  plaintiff 
was  afterwards  found  guilty,  and  plain- 
tiff, in  presence  of  defendant,  made  use  of 
language  indicating  an  intention  on  his 
part  to  continue  the  disturbance,  then  de- 
fendant had  a  right  to  arrest  without 
process.  These  requests  were  refused, 
and,  under  the  facts  in  the  case,  we  think 
properly. 

There  are  many  loose  general  state- 
ments in  the  books  as  to  the  right  of  offi- 
cers to  make  arrests  without  warrant. 
Thatthey  have  a  righ  t  to  arrest  for  bi'each- 
es  of  the  peace  committed  in  their  presence 
is  conceded  by  all.  It  is  equally  clear  that 
they  cannot  arrest  for  a  past  offense,  not  a 
felony,  upon  information  or  suspicion 
thereof,  although  expressions  may  be  found 
which  would  seem  to  assume  such  power. 
How  far  or  when  they  may  interfere  by 
an  arrest  to  prevent  a  threatened  breach 
of  the  peace  is  not  equallj' clear.  We  are 
of  opinion  that  a  threat  or  other  indica- 
tion of  a  breach  of  the  peace  will  not  justi- 
fy an  officer  in  making  an  arrest,  unless 
the  facts  are  such  as  would  warrant  the 
officer  in  believing  an  arrest  necessary  to 
prevent  an  immediate  execution  thereof, 
as  where  a  threat  is  made,  coupled  with 
some  overt  act  in  attempted  execution 
thereof.  In  such  cases  the  officer  need  not 
wait  until  the  offense  is  actually  commit- 
ted. To  justify  such  arrest  the  party 
must  havegoneso  far  in  the  commission  of 
an  offense  that  proceedings  might  there- 
after be  instituted  against  him  therefor, 
and  this  without  reference  to  any  past 
similar  offense  of  which  the  person  may 
have  been  guilty  before  the  arrival  of  the 
officer.  The  object  of  permitting  an  ar- 
rest, under  such  circumstances,  is  to  pre- 
vent a  breach  of  the  peace,  where  the  facts 
show  danger  of  its  being  immediately  com- 
mitted. 

A  reference  to  some  of  the  authorities 
may  not  be  inappropriate.  In  Reg.  v.  Ma- 
bel, 9  Car.  &  P.  474,  the  jury  were  charged 
that,  under  the  circumstances  stated  by 
the  policemen,  they  had  no  authority  to 
lay  hold  of  the  defendant,  unless  they  were 
satisfied  that  a  breach  of  the  peace  was 
likely  to  be  committed  by  the  defendant 
on  the  person  in  the  parlor.  In  Timothy 
V.  Simpson,  1  Cromp.,M.&  R.  757,  the  plea 
justifying  the  imprisonment  alleged  that 
an  affray  had  been  committed,  and  it  ap- 
peared that  there  was  danger  of  its  im- 
mediate renewal.  In  Grant  v.  Moser,  5 
Man.  &  G.  12.3,  it  was  said  there  should  be 
a  direct  allegation  either  of  a  breach  of  the 
peace  committing  at  the  time,  or  that  a 
breach  had  been  committed,  and  that 
there  was  reasonable  ground  for  appre- 


FALSE  IMPRISONMENT. 


97 


liendmg  its  renewal.  In  Baynes  v.  Brew- 
ster, 2  Q.  B.  3S4,  a  plea  to  a  declara- 
tion for  false  ini prison nient  was  held 
bad  which  showed  that  the  violent  and 
illegal  conduct  was  over,  and  it  was  not 
stated,  nor  did  it  appear,  that  it  would 
have  been  repeated  if  the  apprehension 
had  not  taken  place.  In  this  case  Will- 
iams, J., saiil  :  "  Itis  not  a  question, in  this 
place,  how  far  a  constable  is  justified  in 
inteifering  where  an  affray  is  going  on  in 
his  presence;  but  no  principle  is  more  gen- 
erally assumed  than  that  a  warrant  is 
nece.'^sary  to  entitle  him  to  interfere  after 
the  affray  is  over.  II  is  otherwise  where 
the  facts  show  that  the  affray  is  practical- 
ly- gc>ing  on.  That  is  on  account  of  the 
obvious  distinction,  as  to  public  danger, 
between  a  riot  still  raging  and  one  no 
longer  e.xisting.  "  W'iohtman,  J.,  in  speak- 
ing of  the  right  to  arrest  during  the  affray, 
and  while  there  is  a  disposition  shown  to 
resist  it,  quotes  from  Timothy  v.  Simpson 
as  follows:  "Both  cases  fall  within  the 
same  principle,  which  is  that,  for  the  sake 
of  the  preservation  of  the  peace,  any  indi- 
vidual who  sees  it  broken  maj'  restrain 
the  liberty  of  him  whom  he  sees  breaking 
it,  so  long  as  his  conduct  shows  that  the 
public  pf^ace  is  likely  to  be  endangered  b^' 
his  acts."  In  Wheeler  v.  Whiting,  9  Car. 
&  P.  2G2,  Patteson,  J.,  said:  "The  de- 
fendant pleads  that  the  plaintiff  was  mak- 
iag  a  disturbance  in  the  house,  and  ready 
and  desirous  to  commit  a  breach  of  the 
peace;  whereupon  he  gave  him  in  charge 
to  the  policeman,  to  be  dealt  with  accord- 
ing to  law.  The  policeman,  hoAvever,  was 
not  justified  in  taking  him,  unless  he  saw 
some  breach  of  the  peace  committed.  On 
a  charge  of  felony  it  would  be  different ;  " 
and  the  learned  justice  doubted  whether 
a  plea  which  stated  that  the  plaintiff  was 
intending  to  commit  a  breach  of  the  peace 
was  good.  In  Howell  v.  Jackson,  6  Car. 
&  P.  723,  Parke,  B.,  distinctly  and  clearly 
instructed  the  jury  that  to  make  out  the 
defense  they  must  be  satisfied  tiiat  plain- 
tiff had  committed  a  breach  of  the  peace, 
and  that  the  watchman  saw  him  do  so. 
In  Knot  V.  Gaj',  1  Root,  66,  it  was  said  an 
arrest  might  be  made  to  prevent  a  breach 
of  the  peace  which  was  about  to  take 
place.  In  State  v.  Brown,  5  Har.  (Del.) 
507,  it  was  said'  "A  peace-officer,  such  as 
a  constable  or  sheriff,  has  the  right  to  ar- 
rest, even  without  warrant,  a  person  con- 
cerned in  a  breach  of  the  peace,  or  other 
crime,  or  when  he  has  reasonable  ground 
to  suspect  the  party  of  such  offense. " 
Clearly  this  last  clause  does  not  state  the 
law  correctlj'  in  not  limiting  the  right  to 
cases  of  felonj'.  In  McCuUough  v.  Cora., 
67  Pa.  St.  :i2,  it  was  said:  "A  constable 
may  justif.v  an  arrest  for  a  reasonable 
cause  of  suspicion  alone;"  citing  in  sup- 
port Russell  V.  Shuster.  S  Watts  &  S.  30'.), 
which  Avas  a  case  of  suspicion  of  felony. 
In  Com.  V.  Carey,  12  Cush.  2r)2,  Shaw  C. 
J.,  said  "  that  a  constable  or  other  peace 
officer  could  not  arrest  one  without  a 
warrant,  for  a  crime  proved  or  suspected, 
if  such  crime  were  not  an  offense  amount- 
ing in  law  to  felony. "  Other  cases  might 
be  referrt'd  to.  There  is  little  danger  of 
being  misled  by  the  cases  in  which  it  is 
held  an  otficer  may  make  arrests  to  pre- 
CIIASE — 7 


vent  a  thre;itened  breach  of  the  peace. 
The  interposition  in  the  case  of  merely 
threatened  violence  is  not  for  the  jnirpose 
of  an  arrest,  in  the  ordinary  sense,  but  as 
a  peace-officer,  to  prevent  atlisturbance  or 
breach  of  the  peace,  under  a  present  men- 
ace of  violence.  The  judgment  must  be 
affirmed,  with  costs.  The  other  justices 
concurred. 


(11  Johns.  486.) 

Phillips  v.  Trull. 

(Suprevie  Court  of  New  York.    Oct.,  1814.) 

False  Imprisonment  —  Arrest  without  War- 
rant— Breach  of  the  Peace. 
In  an  action  for  false  imprisonment,  it  is  no 
justification  that  plaiulifE,  having  been  engaged 
in  an  affray,  was  taken  into  custody  until  he 
could  be  brought  before  a  magistrate,  unless  de- 
fendant was  an  officer  or  acted  under  a  warrant. 

Demurrer  tf)  plea. 

Action  for  assault  and  batter3'  and  false 
imprisonment.  The  declaration  contained 
three  counts,  of  which  the  first  and  second 
charged  an  assault  and  battery  and  an 
imprisonment  for  six  days,  and  the  third 
charged  only  an  assault  and  battery. 
Defendant  pleaded  (1)  not  guilty;  and, 
(2)  as  to  the  assaulting,  etc.,  and  impris- 
oning the  plaintiff,  and  detaining  him  in 
I)rison  for  the  space  of  10  hours,  part  of 
the  time  in  the  first  count  of  the  declara- 
tion mentioned,  that  the  plaintiff  and 
three  other  persons,  being  in  a  house  oc- 
cupied by  one  Fitch,  made  a  great  noise, 
affray,  disturbance,  and  riot  in  the  said 
house,  in  breach  of  the  peace;  and  be- 
cause the  defendant,  being  a  laborer  and 
lodger  in  the  said  house,  at  the  request  of 
the  said  Fitch,  in  attempting  to  keep  the 
peace  and  stop  the  noise,  etc.,  was  as- 
saulted by  the  plaintiff,  he  gave  charge  of 
the  said  plaintiff  to  one  Curtis  to  take  him 
into  his  custody-,  and  keep  him  until  he 
could  be  carried  before  a  justice  of  the 
peace,  to  answer  for  the  said  breaches  of 
the  peace;  and  that,  at  the  request  and 
by  the  order  of  the  defendant,  the  said 
Curtis  gently  laid  his  hands  on  The  said 
plaintiff,  and  took  him  into  custody  for 
the  purposes  aforesaid ;  but  because  it 
was  midnight,  and  the  plaintiff  could  not 
be  immediately  carried  before  a  justice  of 
the  peace,  he  was  necessarily  detained  in 
the  custody  of  Curtis  until  the  next  day, 
and  that  he  was.  as  soon  as  he  conveu- 
ientlj' could  be,  carried  before  a  justice;  and 
the  defendant  avers  that,  b^'  means  of 
the  premises,  the  plaintiff  was  necessarily 
imprisoned  for  the  space  of  10  hours, 
part  of  the  said  time,  which  is  the  same, 
etc.  To  this  second  plea  the  plaintiff  de- 
murred specially,  because  (1)  it  does  not 
answer  the  fii'st  count  of  the  declaration ; 
(2)  that  it  is  no  justification  or  bar  to  the 
action;  (3)  that  it  is  double  and  argu- 
mentative, and  in  other  respects  uncer- 
tain, informal,  and  insufficient. 

^JI•.  »S';7/,  in  support  of  the  demurrer.  Mr. 
Wendell,  opposed. 

Platt,  J.  All  persons  whatever,  who 
are  present  when  a  felon3- is  committed, 
or  a  dangerous  wound  is  given,  ai-e  bopnd 
to  apprehend  the  offenders.  3  Hawk.  P. 
C.   157,  "Arrest,"    s.   1.     So  any    person 


98 


LAW  OF  TORTS. 


whatever,  if  an  affray  be  made,  to  the 
breach  of  the  peace,  may,  without  a  war- 
rant from  a  magistrate,  restrain  any  of 
the  offenders,  in  order  to  preserve  the 
peace;  but,  after  there  is  an  end  of  the 
affray,  thev  cannot  be  arrested  without  a 
warrant.  2  Inst.  .52;  Burns,  J.  P.  92. 
Hawkins  (3  Hawlc.    P.  C.  174,   b.   2,  s.  20) 


says:  "It  seems  clear  that,  regularly,  no 
private  person  can,  of  liis  own  authoi'ity, 
arrest  another  for  a  bare  breach  of  the 
peace,  after  it  is  over."  We  are  of  opin- 
ion that  the  special  plea  of  justification  is 
bad,  and  the  plaintiff  is  therefore  entitled 
to  judgment  on  the  demurrer. 
Judgment  for  plaintiff. 


(See,  also,  Tavlor  v.  Strong,  3  Wend.  384;  Wahl  v.  Walton,  30  Minn.  506,  16  N.  W.  Rep.  897;  Fleet- 
wood  V.  Com.,  80  Ky.  1;  Price  v.  Seeley,  10  Clark  &  P.  28.) 


)weA< 


MALICIOUS   PROSECUTION. 


Elements  of  action — "  Malice  "  and  "  probable  cause  "  defined. 


(48  Barb.  30.) 
Miller  v.  Milligan. 

(Supreme  Court  of  New  York.     March  5,  1866. ) 

1.  Malicious  Pkosecution — Grounds  of  Actiox. 
The  essential  elements  of  an  action  for  mali- 
cious prosecution  consist  of  a  previous  unfounded 
prosecution  of  the  plaintiff  by  the  defendant, 
commenced  without  probable  cause,  conducted 
with  malice,  and  terminating  favorably  to  the 
party  prosecuted. 

2.  Same — Malice — Probable  Cause. 

To  sustain  the  action,  want  of  probable  cause 
for  the  former  suit  and  malice  must  concur,  and 
the  former  cannot  be  inferred  from  any  degree  of 
malice  which  may  be  shown. 

3.  Same— Burden  of  Proof. 

Where  plaintiff  fails  to  show  that  defendant 
was  the  real  prosecutor  in  the  former  suit,  or,  if 
so,  that  he  was  without  evidence  or  circumstances 
justifying  a  reasonable  suspicion  of  the  U'uth  of 
the  charge,  the  complaint  may  properly  be  dis- 
missed. 

IxGALLs,  J.,  dissenting. 

Exceptions  from  circuit  court. 

Action  for  malicious  ijrosecution,  on  the 
ground  that  a  former  proceeding:  against 
plaintiff,  in  a  district  court  of  the  United 
States,  in  which  he  was  arrested  and  in- 
dicted for  having  induced  a  prisoner,  in  de- 
fendant's custody  as  a  deserter  from  the 
army,  to  escape,  and  was  tried  and  ac- 
quitted of  the  charge,  was  instigated  by 
defendant  maliciously,  and  was  without 
probable  cause.  At  the  trial  the  court 
dismissed  the  plaintiff's  complaint,  and 
ordered  his  exceptions  to  be  heard  in  the 
first  instance  at  the  general  term. 

Argued  before  Miller,  Ingalls,  and 
HOGEBOOM,  JJ. 

T).  K.  Olney,  for  plaintiff.  T.  R.  West- 
brook,  for  defendant. 

HoGEBOOM,  J.  The  essential  elements 
of  this  action  are  well  understood.  They 
consist  of  a  previous  unft)unded  prosecu- 
tion of  the  plaintiff  by  the  defendant,  com- 
menced without  probable  cause,  conduct- 
ed with  malice,  and  terminating  favorably 
to  the  party  prosecuted.  Vanderbilt  v. 
Mathis,  5  Duer,  304;  Foshay  v.  Ferguson, 
2  Denio,  617;  Besson  v.  Southard,  10  N.  Y. 
236;  McKown  v.  Hunter.  30  N.  Y.  627.  In 
regard  to  these,  tlie   burden  of  proof  rests 


on  the  plaintiff,  and  be  must  establish 
each  of  these  several  propositions  or  fail 
in  his  action.  It  is  often  said,  in  a  general 
way,  that  malice  and  the  want  of  proba- 
ble cause  are  the  ingredients  of  the  cause 
of  action  ;  but  it  is  plain  that  the  other  in- 
gredients are  implied  or  understood  to 
exist.  Vanduzor  v.  Linderman,  10  Johns. 
106;  McCormick  v.  Sissoii,  7  Cow.  715; 
Bulkeley  v.  Smith,  2  Duer,  261;  Von  La- 
tham V.  Rowan,  17  Abb.  Pr.  23s,  248;  Mc- 
Kown V.  Hunter,  30  N.  Y.  627.  Thus,  in 
general,  very  little  is  said  about  the  de- 
fendant having  been  the  prosecutor,  be- 
cause the  question  ordinarily  is  not  the 
subject  of  dispute,  and  because,  generally, 
the  defendant  was  the  adverse  party  in 
the  action  or  proceeding  which  constitut- 
ed the  f^ravamen  of  the  action  for  mali- 
cious prosecution.  But  itplainly  liesat  the 
very  foundation  of  this  action  that  the 
plaintiff  must  show  that  the  defendant, 
and  not  somebody  else,  has  prosecuted 
him, — has  been  the  real  part3',in  fact,  who 
has  set  on  foot  and  conducted  the  proceed- 
ings against  him.  This  prosecution  may 
have  been  in  the  form  of  a  civil  action,  or 
of  a  criminal  proceeding;  and.  when  not 
conducted  in  the  name  of  the  offending 
part3%  it  would  doubtless  suffice  to  prove 
that  he  was  the  real  party, — the  mover  and 
manager  and  controller  of  the  prosecu- 
tion. If  he  were  the  mere  clerk  or  agent 
of  others,  or  a  mere  -witness  in  the  tran.s- 
action,  he  would  not  hold  the  character 
nor  be  liable  to  the  penalties  of  a  mali- 
cious prosecutor.  So  the  plaintiff  must 
aver  and  prove  that  the  prosecution 
claimed  to  be  malicious  is  terminated  in 
his  favor.  Gorton  v.  De  Angelis,  6  Wend. 
418;  Clark  v.  Cleveland,  6  Hill,  344;  Hall 
v.  Fisher,  20  Barb.  441.  Proof  that  the 
prosecution  complained  of  was  instituted 
through  actual  malice  is  not  enough  to 
sustain  the  action.  Foshay  v.  Ferguson, 
2  Uenio,  617.  In  an  action  for  malicious 
prosecution,  the  plaintiff  must  allege  and 
prove  both  malice  and  a  want  of  probable 
cause  for  the  former  suit.  If  there  was 
probable  cause,  the  action  cannot  be 
maintained,  even  though  the  ijrosecution 
complained  of  was  malicious.  Want  of 
probable  cause  and   malice  must  concur. 


MALICIOUS  PROSECUTIOX. 


99 


and  the  foriDer  cannot  be  inferred  from 
any  degree  of  malice wliich  maybe  shown. 
Besson  v.  Southard,  10  N.  Y.23G;  Bulkeley 
V.  Smith,  2  Duer,  261.  I  allude  to  these 
familiar  rules,  not  for  the  purpose  of  es- 
tablisliing  their  existence,  but  merelj'^  to 
bring  to  mind  how  strict  andexactinjjj  the 
courts  have  been  in  enforcing  them.  In 
the  present  case  I  was  of  opinion  at  tlie 
trial  that,  in  two  at  least  of  the  particu- 
lars essential  to  constitute  the  cause  of  ac- 
tion, there  was  a  lack  of  evidence  to  justi- 
fy a  recovery,  and  I  am  still  of  the  same 
opinion.  * '  *  *  The  defendant  has,  I 
think,  shown  probable  cause  for  the  pros- 
ecuti(m  if  he  is  its  author,  and  the  plain- 
tiff (which  is  the  real  question)  has  not 
shown  the  want  of  probable  cause  for  the 
charge.  On  both  of  the  grounds,  the  ab- 
sence of  proof  to  show  that  the  defendant 
was  the  real  prosecutor,  and,  if  so,  that 
he  was  without  evidence  or  circumstances 
justifying  a  reasonable  suspicion  of  the 
truth  of  the  charge,  I  am  of  opinion  that 
the  plaintiff  was  properly  nonsuited,  and 
had  no  legal  right  to  ask  a  submission  of 
the  facts  to  the  jury.  *  *  *  I  think  no 
legal  error  was  committed  at  the  circuit, 
and  that  a  new  trial  should  be  denied,  and 
the  defendant  have  judgment. 


Miller,  J.,  concurred, 
fiented. 


Ingalls,  J.,  dis- 


(66  Me.  202.) 
PULLEN   V.  Gl>IDDEN. 

(Supreme  Judicial  Court  of  Maine.    Feb.  19, 
1877.) 

Malicious  Prosecution — Malice. 

To  maintain  an  action  for  malicious  prosecu- 
tion, plaintiff  must  prove  malice  in  fact  on  the 
part  of  defendant,  as  distinguished  from  malice 
in  law,  which  is  established  by  legal  presump- 
tion from  proof  of  certain  facts.  But  the  plain- 
tiff is  not.  required  to  prove  "express  malice," 
in  the  popular  signification  of  the  term;  as,  that 
defendant  was  prompted  by  malevolence,  or  act- 
ed from  motives  of  ill  will,  resentment,  or  hatred 
towards  plaintiff.  It  is  suflQcientif  he  prove  mal- 
ice in  its  enlarged,  legal  sense,  in  which  an  act 
done  willfully  and  purposely,  to  the  prejudice 
and  injury  of  another,  which  is  unlawful,  is,  as 
against  that  person,  malicious. 

On  exceptions. 

Action  on  the  case  brought  by  Willard 
W.  Pullen  against  James  S.  Glidden  for 
malicious  prosecution.  It  appeared  that 
defendant  had  made  a  complaint  before 
a  magistrate  charging  plaintiff  with  for- 
gery, and  that  plaintiff  was  arrested,  but, 
upon  examination,  was  acquitted  and 
discharged  from  arrest.  Thereupon  he 
brought  this  action.  At  the  trial  the  jury 
found  a  verdict  for  defendant.  Plaintiff 
alleged  exceptions. 

J.  W.  Kuowlton,  for  plaintiff.  L.  M. 
Staples,  for  defendant. 

LiBBEY,  J.  This  is  an  action  for  mali- 
cious prosecution.  The  presiding  judge  in- 
structed the  jury  that  there  was  not  prob- 
able cause  for  the  prosecution.  Upon  the 
question  of  malice  he  instructed  the  jury 
as  follows:  "In  regard  to  the  other 
branch  of  the  case  necessary  to  be  estab- 
lished by  the  plaintiff,  it  is  that  there  was 


malice;  that  the  prosecution  was  mali- 
cious. Now,  what  is  '  malice?'  There  are 
several  kinds  of  malice;  but  the  two  kinds 
of  malice  that  may  perhaps  be  considered 
in  this  charge  are  malice  in  law  and  mal- 
ice in  fact.  Now,  what  is  malice  in  law? 
Malice  in  law  is  such  malice  as  is  inferred 
from  thecommission  of  an  act  wrongful  in 
itself,  without  justification  or  excuse. 
This  is  not  the  kind  of  malice  required  in 
this  case.  The  malice  required  to  be  proved 
in  this  case  is  malice  in  fact.  Malice 
in  fact  is  where  the  wrongful  act  was 
committed  with  a  bad  intent,  from  mo- 
tives of  ill  will,  resentment,  hatred,  a  de- 
sire to  injure,  or  the  like.  Did  such  kind 
of  malice  exist  in  the  mind  of  the  defend- 
ant when  hecommencedthe  prosecution  in 
question?  Did  he  do  it  from  bad  intent, 
from  evil  motives,  or  did  he  not?  Malice 
may  be  inferred  from  want  of  probable 
cause,  or  it  may  be  inferred  and  proved 
by  other  evidence  in  the  case. "  Again: 
"If  you  should  find  that  there  was  no 
malice,  such  as  I  have  described,  the 
plaintiff  could  not  maintain  this  action." 

The  ijlaintiff  complains  that  this  instruc- 
tion required  the  jury  to  find  malice  in  its 
more  restricted,  popular  sense,  when 
proof  of  malice  in  its  enlarged,  legal  sen'^e 
was  all  that  the  law  requires.  To  main- 
tain his  case,  it  was  necessary  for  the 
plaintiff  to  prove  malice  in  fact,  as  distin- 
guished from  malice  in  law.  Malice  in  law 
is  where  malice  is  established  by  legal  pre- 
sumption from  proof  of  certain  facts,  as 
in  actions  for  libel,  where  the  law  presumes 
malice  from  proof  of  the  publication  of 
the  libelous  matter.  Malice  in  fact  is  to 
be  found  by  the  jury  from  the  evidence 
in  the  case.  They  may  infer  it  from  want 
of  probable  cause.  But  it  is  well  estab- 
lished that  the  plaintiff  is  not  required  to 
prove  "express  malice,"  in  the  popular 
signification  of  the  term,  as  that  defend- 
ant w'as  prompted  by  malevolence,  or 
acted  from  motives  of  ill  will,  resentment, 
or  hatred  towards  the  plaintiff.  It  is 
sufficient  if  he  prove  it  in  its  enlarged,  le- 
gal sense.  "In  a  legal  sense,  any  act  done 
willfully  and  purposely,  to  the  prejudice 
and  injury  of  another,  which  is  unlawful, 
is,  as  against  that  person,  malicious." 
Com.  V.  Snelling,  15  Pick.  337.  "The  mal- 
ice necessary  to  be  shown,  in  order  to 
maintain  this  action,  is  not  necessarily 
revenge,  or  other  base  and  malignant 
passicjn.  Whatever  is  done  willfully  and 
purposely,  if  it  be  at  the  same  time  wrong 
and  unlawful,  and  that  known  to  the  par- 
ty, is,  in  legal  contemplation,  malicious.  " 
Wills  v.  Noyes,  12  Pick.  324.  See,  also, 
Page  V.  Gushing,  38  Me.  523;  Humphries 
V.  Parker,  52  Me.  502;  Mitchell  v.  Wall,  111 
Mass.  492.  We  think,  from  a  fair  construc- 
tion of  the  instruction  upon  this  point, 
the  jury  must  have  understood  that, 
in  order  to  find  for  the  plaintiff,  they 
must  find  that  the  defendant,  in  prosecut- 
ing the  plaintiff,  was  actuated  by  "ex- 
press malice,"  in  the  popular  sense  of  the 
term.     In  this   respect  it   was  erroneous. 

Exceptions  sustained. 

Appleton,  C.  J.,  and  Dickerson,  D.\n- 
FORTH,  Virgin,  and  Peters,  J  J.,  concurred. 


lOU 


LAW  OF  TORTS. 


(2  Denio,  617.) 
FOSHAY   V.  FerGUSOX. 

(Supreme  Court  of  New  York.    May,  1846.) 

1.  Malicious  Frosecdtion  —  Want  of  Probable 

Cause. 
To  maintain   an   action  for   malicious  prosecu- 
tion, plaintiff  must  prove,  not  only  express  mal- 
ice on  the  part  of  defendant,  but  absence  of  prob- 
able cause  for  the  prosecution. 

2.  Same. 

Probable  cause  is  reasonable  ground  of  sus- 
picion, supported  by  circumstances  sufficient  to 
warrant  a  cautious  man  in  the  belief  that  the  per- 
son accused  is  guilty  of  the  offense  charged. 

3.  Same. 

The  next  day  after  plaintiff  had  passed  defend- 
ant's farm  with  a  drove  of  cattle,  it  was  discov- 
ered that  some  of  defendant's  cattle  were  miss- 
ing, and  defendant  was  informed  that  several 
cattle  belonging  to  another  person  had  been 
driven  away,  and  that  he  had  pursued  the  drove, 
and  regained  them  from  plaintiff.  Defendant 
also  pursued  and  overtook  the  drove,  and  found 
two  of  his  cattle  in  it,  which  he  charged  plain- 
tiff with  stealing,  and  thereupon  plaintiff  paid 
defendant  a  large  amount  in  cattle  and  money  to 
settle  the  matter.  Held,  that  there  was  proba- 
ble cause  for  a  subsequent  charge,  made  by  de- 
fendant against  plaintiff,  of  stealing  the  two  cat- 
tle, on  which  plaintiff  was  indicted ;  and  that 
defendant  was  not  liable  to  an  action  therefor, 
even  though  he  acted  maliciously,  and  although 
plaintiff  was  acquitted  on  trial  of  the  indictment. 

Motion  for  new  trial. 

Action  for  malicious  prosecution  in 
chargin<j:  plaintiff  with  stealing  cattle,  for 
which  he  was  indicted,  but,  on  trial,  was 
acquitted.  It  appeared  that  several  of 
defendant's  cattle,  kept  on  his  farm,  under 
the  charge  of  one  Lambert,  were  discov- 
ered to  be  missing  the  next  day  after  plain- 
tiff had  passed  the  farm  with  a  drove  of 
cattle;  that  some  of  the  missing  cattle 
were  found  in  the  route  of  tlie drove;  that 
Lambert  was  told  by  one  Gage  that  sev- 
eral of  the  latter's  cattle  had  been  driven 
away,  and  that  he  had  pursued  and  over- 
taken the  drove,  and  had  regained  his  cat- 
tle, and  the  drover  had  settled  with  him; 
that  Lambert  went  to  defendant  with 
this  information,  and  they  pursued  the 
drove  a  distance  of  about  70  miles,  and 
overtook  it,  and  found  in  it  two  of  defend- 
ant's yearling  cattle;  that  plaintiff  owned 
and  was  with  the  drove,  and  defendant 
charged  him  with  stealing  the  cattle,  and 
said  he  had  a  warrant  for  him,  and  would 
take  him  back;  that  plaintiff  said  he 
would  rather  settle  it,  and  that  on  the 
next  morning,  they  settled  the  matter, 
plaintiff  giving  defendant  .cattle  to  the 
value  of  .^200,  and  i)aying  him  in  money 
the  value  of  the  two  yearlings,  which 
plaintiff  kept.  Soon  afterwards  defendant 
saw  Gage,  who  told  him  of  plaintiff's  hav- 
ing driven  off  his  cattle,  and  both  ex- 
pressed the  opinion  that  all  was  not  right 
with  plaintiff.  Plaintiff  afterwards 
brought  actions  against  defendant  for 
slander  in  charging  him  with  stealing  the 
cattle,  and  to  recover  the  value  of  the  cat- 
tle which  defendant  had  received  on  the 
settlement.  Thereafter  defendant  went 
before  the  grand  jury,  and  an  indictment 
was  found  against  plaintiff,  but,  on  trial 
thereof,  after  hearing  witnesses  on  both 
sides,    plaintiff    was     acquitted.      Subse- 


quently plaintiff  brought  this  action.  The 
judge  found  a  verdict  for  plaiutiff  for  $250. 
Defendant  moved  for  a  new  trial. 

H.  Spencer  and   J.   A.  Spencer,  for  the 
motion.    M.  T.  Reynolds,  opposed. 

Bro.xson,  C.  J.  There  was  evidence 
enough  in  the  case  to  warrant  the  jury  in 
finding  that  the  defendant  set  the  r>i'osecu- 
tion  in  motion  from  a  bad  motive.  But 
all  the  books  aarree  that  proof  of  express 
malice  is  not  enough,  without  showing 
also  the  want  of  probable  cause.  "Prob- 
able cause"  has  been  defined  as  a  reason- 
able ground  of  suspicion,  supported  by  cir- 
cumstances sufficiently  strong  in  them- 
selves to  warrant  a  cautious  man  in  the  be- 
lief that  the  person  accused  is  guilty  of  the 
offense  with  which  he  is  charged.  Munns 
V.  Dupont  de  Nemours,  8  Wash.  C.  C.  37. 
However  innocent  the  plaintiff  may  have 
been  of  the  crime  laid  to  his  charge,  it  i& 
enough  for  the  defendant  to  sh<»w  that  he 
had  reasonable  grounds  for  believing  him 
guilty  at  the  timethecharge  wasmade.  In 
Swaim  V.  Stafford,  8  Ired.  2St),  and  4  lied. 
892,  the  action  was  brought  against  the 
defendant,  who  was  a  merchant,  for  charg 
ing  tlie  plaintiff  with  stealing  a  piece  of 
ribbon  from  his  store.  At  the  time  the 
complaint  was  made  the  defendant  had 
received  such  information  as  induced  a  be- 
lief of  the  plaintiff's  guilt,  and  although  it 
afterwards  turned  out  that  the  property 
had  not  been  taken  by  any  one,  and  was 
never  out  of  the  defendant's  possession,  it 
was  held  that  an  action  for  malicious 
prosecution  could  not  be  supported.  The 
doctrine  that  probable  cause  depends  on 
the  knowledge  or  information  which  the 
prosecutor  had  at  the  time  the  charge  was 
made  has  been  carried  to  a  great  length. 
In  Delegal  v.  Highley,  8  Bing.  N.  C.  950, 
which  was  an  action  for  maliciously,  and 
without  probable  cause,  procuring  a  third 
person  to  charge  t'le  plaintiff  with  the 
criminal  offense,  the  defendant  pleaded 
specially,  showing  that  the  plaintiff  was 
guilty  of  the  offense  which  had  been  laid 
to  his  charge;  and  the  plea  was  held  bad 
in  substance,  because  it  did  not  sho  .v  that 
the  defendant,  at  the  time  the  charge  was 
made,  had  been  informed  or  knew  the  facts 
on  which  the  chargerested.  The  questicm 
of  probable  cau.se  does  not  turn  on  the  act- 
ual guilt  or  innocence  of  the  accused,  but 
upon  the  belief  of  the  prosecutor  concern- 
ing such  guilt  or  innocence.  Seibert  v. 
Price,  5  Watts  &  S.  48S.  Without  going 
intoparticularexamination  of  theevideuce 
in  this  case,  it  is  enough  to  say  that  the 
defendant,  at  the  time  he  went  before  the 
grand  jury,  had  strong  grounds  for  believ- 
ing that  the  plaintiff  had  stolen  the  cattle, 
and,  so  far  as  appears,  not  a  single  fact 
had  then  come  to  his  knowledge  which 
was  calculated  to  induce  a  different  opin- 
ion. Although  the  plaintiff  was  in  fact 
innocent,  there  would  be  no  color  for  this 
action,  if  it  were  not  for  the  fact  that  the 
defendant  settled  the  matter  with  the 
plaintiff,  instead  of  proceeding  again.«thim 
for  the  supposed  offense.  If  the  parties  in- 
tended the  settlement  should  extend  so  far 
as  to  cover  up  and  prevent  a  criminal 
prosecution,  the  defendant  was  guilty  of 
compounding  a  felony.     And  the  fact  that 


MALICIOUS  PROSECUTION. 


101 


he  made  no  complaint  until  the  plaintiff 
commenced  the  two  suits  ag^ainst  him 
goes  far  to  show  that  he  was  obnoxious 
to  that  charge,  and  that  he  was  governed 
more  by  his  own  interest  than  by  a  proper 
regard  to  the  cause  of  public  justice.  But, 
however  culpable  the  defendant  may  have 
been  for  neglecting  his  duty  to  the  i)ublic, 
that  cannot  be  made  the  foundation  of  a 
private  action  by  the  plaintiff.  Although 
the  defendant  may  have  agreed  not  to 
prosecute,  and  the  complaint  may  have 
been  afterwards  made  from  a  malicious 
feeling  towards  the  plaintiff,  still  the  fact  of 
probable  cause  remains;  and,  so  long  as 
it  exists,  it  is  a  complete  defense.      There 


is  enough  in  the  defendant's  conduct  to 
induce  a  rigid  scrutiny  of  the  defence.  But 
if  upon  such  scrutiny  it  appears  that  he  had 
reasonable  grounds  for  believing  the  plain- 
tiff guilty,  and  there  is  nothing  to  shosv 
that  he  did  not  actually  entertain  that  be- 
lief, there  is  no  principle  upon  which  the 
action  can  be  supported.  On  a  careful 
examination  of  the  case,  I  am  of  opinion 
that  the  verdict  was  clearly  wrong.  But, 
as  the  charge  of  the  judge  is  not  given,  we 
must  presume  that  the  case  was  properly 
submitted  to  the  jury,  and  a  new  trial 
can  therefore  only  be  had  on  payment  of 
costs. 

Ordered  accordingly. 


(See,  also,  Vinal  v.  Core,  18  W.  Va.  1;  Vanderbilt  v.  Mathis,  5  Duer,  304;  Abrath  v.  Northeastern 
R.  Co.,  11  Q.  B.  Div.  440,  affirmed  in  L.  R.  11  App.  Cas.  247;  Hicks  v.  Faulkner,  S  Q.  B.  Div.  167,  affirmed 
in  46  Law  T.  [N.  S.]  127;  Wheeler  v.  Nesbitt,  24  How.  544;  Stewart  v.  Sonneborn,  98  U.  S.  187.) 


Effect  of  advice  of  counsel. 


(25  Pa.  St.  275.) 

Walter  v.  Sample. 

(Supreme  Court  of  Pemisylvania.     1855. ) 

Malicioc  Prosecution  —  Probable  Cause — Ad- 
vice OF  COUXSEL. 

In  an  action  for  malicious  prosecution,  defend- 
ant, to  avail  himself  of  the  defense  that  he  acted 
under  professional  advice,  must  show  that  he 
submitted  all  the  facts  which  he  knew  were  ca- 
pable of  proof  fairly  to  his  counsel,  and  that  he 
acted  hona  fide  on  the  advice  given.  He  thus 
negatives,  if  not  the  malice,  the  want  of  probable 
cause:  and  he  is  not  liable,  even  though  the  facts 
did  not  warrant  the  advice  and  the  prosecution. 

Error  to  district  court,  Allegheny  coun- 
ty 

Action  on  the  case  for  malicious  prose- 
cution. At  the  trial,  a  member  of  the  bar 
testified,  on  behalf  of  defendant,  that  the 
latter  stated  to  him  the  facts  of  the  case, 
and  acted  under  his  advice  in  instituting 
the  alleged  malicious  prosecution.  The 
court  instructed  the  jury  that  "the  opinion 
of  private  counsel  cannot  amount  to 
proof  of  probable  cause,  unless  the  facts 
clearly  warrant  it,  and  were  correctly 
stated."  The  jur^'  found  a  verdict  for 
plaintiff.  Defendant  assigned  error  in  said 
instruction. 

Marsh-ill  &  Brown,  for  plaintiff  in  error. 
J.  T.  Cochran,  for  defendant  in  error. 

Woodward,  J.  This  was  an  action  on 
the  case  for  malicious  prosecution,  and 
the  only  question  presented  by  the  record 
is  whether  the  court  were  right  in  instruct- 
ing the  jury  that  "the  opinion  of  private 
counsel  cannot  amount  to  proof  of  proba- 
ble cause,  unless  the  facts  clearly  warrant 
it,  and  were  correctly  stated.  "  Ever  since 
the  case  of  Farmer  v.  Darling,  4  Burrows, 
1971,  it  has  been  held  that  malice,  either 
express  or  implied,  and  the  wnnt  of  prob- 
able cause,  must  both  concur  to  support 
actions  of  this  nature.  The  presumption 
of  law  is  that  every  public  prosecution  is 
founded  in  probable  cause,  and  the  burden 
is  therefore,  in  the  first  instance,  on  the 
plaintiff;  but  when  he  has  submitted  evi- 
dence of  want  of  probable  causp,  or  of  cir- 
cumstances   from    which     a   violent    pre- 


sumption would  arise  that  it  was  want- 
ing, the  burden  of  proof  is  shifted  onto  the 
defendant,  and  then  it  is  competent  for 
him  to  show  that  he  acted  under  profes- 
sional advice.  To  make  this  defense  avail- 
able he  must  show  that  he  submitted  all 
the  facts  which  he  knew  were  capable  of 
proof  fairly  to  his  counsel,  and  that  he 
acted  bona  fide  t)n  the  advice  given.  This 
proved,  he  negatives,  if  not  the  malice, 
the  want  of  probable  cause.  I  accede  to 
the  proposition,  said  Bayley,  J.,inKaven- 
ga  V.  Mackintosh,  2  Barn.  &  C.  G98,  that  if 
a  party  lays  all  the  facts  of  his  case  fairly 
before  counsel,  and  acts  bona  fide  unon 
the  opinion  given  by  that  counsel,  (how- 
ever erroneous  that  opinion  may  be,)  he 
is  not  liable  to  an  action  of  this  descrip- 
tion. See  the  cases  «-ited  2  Saund.  PI.  &  Ev. 
marg.  pp.  659,  660.  In  Somner  v.  Wilt,  4 
Serg.  &  R.  24,  Judge  Duxcan  plainly  inti- 
mated his  opinion  that  such  evidenoe 
would  be  a  defense  to  the  action,  as  nega- 
tiving the  imputation  of  malice;  and  in 
the  case  of  Hall  v.  Smith,  reported  in  7 
Leg.  Int.  7,  the  district  court  of  Philadel- 
phia treated  such  evidence  as  an  answer 
to  the  imputation  both  of  malice  and 
want  of  probable  cause,  between  which, 
it  was  said,  there  is  no  difference  in  the 
consideration  of  a  matter  of  this  kind. 
The  opinion  of  .Tudge  Rogers  at  nisi  prius 
in  the  case  of  Le  Maistre  v.  Hunter, 
Brightly,  N.  P.  498,  which  seems  to  have 
been  the  authority  followed  by  the  court 
below,  is  not,  when  takf^n  altogether,  in 
conflict  with  the  current  of  authorities. 
The  facts  are  not  given  in  reference  to 
which  he  charged  tlie  jury  in  this  lan- 
guage: "In  conformity  to  a  point  put  by 
counsel  for  the  plaintiff,  I  instruct  you 
that  the  opinion  of  priA'ate  counsel  of  a 
prosecution  cannot  amount  to  proof  of 
probable  cause,  nor  prevent  a  recovery, 
unless  the  facts  clearly  warrant  it,  and  are 
correctly  stated.  Even  the  application 
to  counsel,  and  their  opinion,  in  order  to 
be  available  in  the  establishment  of  prob- 
able cause,  must  not  be  resorted  to  as  a 
mere  cover  for  the  prosecution,  but  must 
be  the  result  of  an  honest  and  fair  pur- 
pose; and  the  statement  made  at  the  time 


102 


LAW  OF  TOKTS. 


must  be  fair  and  full,  and  consistent  with 
that  purpose." 

This  is  no  more  than  a  statement  of  the 
general  rule,  with  its  necessary  qualifica- 
tions. Nevertheless,  the  words,  "unless 
the  facts  clearly  warrant  it,"  found  both 
in  Judge  Rogers'  opinion  and  that  under 
review,  are  ill  chosen,  because  liable  to 
misapplication.  "Unless  the  facts  clearly 
warrant"  what?  The  opinion  of  counsel, 
or  the  prosecution?  Whichever  he  the  an- 
tecedent intended,  it  is  apparent  that  these 
words  would  make  the  defense  depend  for 
its  value  wholly  on  the  soundness  of  the 
legal  opinion.  If  the  facts  must  clearly 
warrant  the  legal  opinion,  that,  to  be  a 
defense,  must  be  the  very  judgment  of  the 
law  on  the  facts;  if  they  must  clearly  war- 
rant the  prosecution,  tlien  the  defense  is 
complete,  without  the  professional  opin- 
ion;  and  thus,  either  way,  it  goes  for 
nothing.  No  matter  how  candidly  and 
faithfully  a  prosecutor  has  submitted  the 
facts  to  his  legal  adviser,  and  followed  his 
advice,  if  they  turn  out  insufficient  for  the 
support  of  the  prosecution,  he  is  liable  in 
an  action  for  malicious  prosecution.  <^)n 
this  principle,  every  acquittal  of  a  defend- 
ant would  be  followed  by  such  an  action. 
A  qualification  of  the  rule  in  terms  like 
these  destroys  the  rule  itself.  The  law  is 
not  so.  Professors  of  the  law  are  the 
proper  advisers  of  men  in  doubtful  circum- 


stances, and  their  advice,  when  fairly  ob- 
tained, exempts  the  party  who  acts  upon 
it  from  the  imputation  of  proceeding  ma- 
liciously and  without  probable  cause.  It 
may  be  erroneous,  but  the  client  is  not  re- 
sponsible for  the  error.  He  is  not  the  in- 
surer of  his  lawyer.  Whether  the  facts 
amount  to  probable  cause  is  the  very 
question  submitted  to  counsel  in  such 
cases;  and,  when  the  client  is  instructed 
that  they  do,  he  has  taken  all  the  precau- 
tion demanded  of  a  good  citizen.  To 
manifest  the  good  faith  of  the  pai'ty.  it  is 
important  that  he  should  resort  to  a  pro- 
fessional adviser  of  competency  and  integ- 
rity. He  is  not,  in  the  language  of  Judge 
Rogers,  to  make  such  a  resort  "a  mere 
cover  for  the  prosecution; "  but,  when  he 
has  done  his  whole  duty  in  the  premises, 
he  is  not  to  be  made  liable  because  the 
facts  did  not  clearly  warrant  the  advice 
and  prosecution.  The  testimony  here  was 
that  Sample  stated  the  facts  of  the  ease, 
and  there  is  no  suggestion  on  the  record 
that  they  were  not  fairly  stated.  Sup- 
pression, evasion,  or  falsehood  would 
make  him  liable;  but  if  fairly  Bubn:itted, 
and  if  the  advice  obtained  was  followed 
in  good  faith,  he  had  a  defense  to  the  ac- 
tion, and  the  court  should  have  given  him 
the  benefit  of  it. 

The  judgment  is  reversed,  and  a  venire 
cle  ?i(»vo  awarded. 


(See,  also,  Folger  v.  Washburn,  137  Mass.  60;  Smith  v.  Walter,  125  Pa.  St.  453,  17  Atl.  Rep.  466; 
Roy  V.  Goings,  112  111.  656;  Forbes  v.  Hagman,  75  Va.  16S ;  White  v.  Carr,  71  Me.  555;  Hall  v.  Suydam, 
3  Barb.  83.) 


Termination  of  the  proceeding. 


(109  Mass.  158.) 

Cardival  v.  Smith. 

{Supreme  Judicial  Court  of  Massachusetts. 
Jan.  Term,  1872.) 

Malicious  Prosecution  —  Termination  of  Pro- 
ceeding— Civil  Action. 
Where  the  plaintiff  in  a  civil  action,  after  ma- 
liciously and  without  probable  cause  procuring 
the  arrest  of  the  defendant  on  the  writ  therein, 
fails  to  have  the  writ  returned  into  the  office  of 
the  clerk  of  the  court,  or  to  appear  at  the  court 
to  which  the  writ  was  returnable,  there  is  a  final 
determination  of  the  action,  such  that  the  defend- 
ant may  maintain  an  action  for  malicious  prose- 
cution. 

Appeal  from  superior  court. 

Action  of  tort  by  Peter  Cardival  against 
Joseph  W.  Smith,  brought  in  the  superior 
court  by  writ  dated  November  26,  1869. 
The  declaration  alleged  that  defendant 
maliciously',  and  without  i)robable  cause, 
procured  the  arrest  of  plaintiff  on  a  writ 
returnable  to  the  superior  court  at  Sep- 
tember term,  ,1869;  that  plaintiff  "duly 
appeared  at  said  court  to  which  said 
writ  was  returnable,  but  that  the  defend- 
ant (lid  not  appear,  well  knowing  that 
he  had  no  probable  cause  to  maintain 
the  action  again«t  the  plaintiff,  nor  was 
said  writ  ever  returned  into  the  office  of 
the  clerk  of  said  court."  Defendant  de- 
murred to  the  declaration  on  the  ground 
that  it  appeared  "  that  the  said  suit  al- 
leged to  be  malicious  was  not  determined 
in  favor  of  the  defendant  therein  by  a 
judgment  of  court."    The  superior  court 


sustained    the     demurrer.     Plaintiff    ap- 
pealed. 

C.  Cowley,  for  plaintiff.    G.  Stevens,  for 
defendant. 

Gray,  ,1.  The  general  rules  of  law  gov- 
erning actions  for  malicious  arrest  and 
prosecution  have  long  been  well  settled. 
In  the  words  of  Lord  Camdex,  "this  is 
an  action  for  bringing  a  suit  at  law ;  and 
courts  will  be  cautious  how  they  dis- 
courage men  from  suing.  AVheu  a  party 
has  been  maliciously  sued,  and  held  to 
bail,  malice,  and  that  it  was  without  any 
probable  cause,  must  be  alleged  and 
proved."  Goslin  v.  Wilcock.  2  Wils.  ,S02, 
307.  "The  new  action  must  not  be 
brought  before  the  first  be  determined,  be- 
cause till  then  it  cannot  appear  that  the 
first  was  unjust."  Bull.  N.  P.  12.  When 
the  prosecution  alleged  to  have  been  ma- 
licious is  b3'  complaint  in  behalf  of  the 
government  for  a  crime,  and  in  pursuance 
thereof  an  indictment  has  been  found 
and  presented  to  a  court  having  jurisdic- 
tion to  try  it, an  acquittal  by  a  jurj'  must 
be  shown,  and  a  nolle  prosequi  entered 
by  the  attorney  for  the  government  is  not 
sufiicient;  for  the  finding  of  the  grand  ju- 
ry is  some  evidence  of  probable  cause,  and 
another  indictment  may  still  be  found  on 
the  same  complaint.  Bull.  N.  P.  14;  Ba- 
con V.  Towne,  4  Cush.  217;  Parker  v. 
Farley,  10  Gush.  279;  Bacon  v.  Waters,  2  Al- 
len, 400.  But  if  it  is  commenced  by  com- 
plaint to  a  magistrate  who  has  jurisdic- 


MALICIOUS  rROSECUTION. 


103 


tiou  only  to  bind  over  or  discharge,  his 
record,  statinjj:  that  thecomplainant  with- 
drew his  prosecution,  and  it  was  tliereup- 
on  ordered  that  the  accused  be  discharged, 
is  equivalent  to  an  acquittal.  SajMes  v. 
Briggs.  4  Mete.  (Mass.)  421,  420.  If  the  ac- 
cused, after  being  arrested,  is  discharged  by 
the  grand  jury's  finding  no  indictment, 
thatsliows  a  legal  end  to  the  prosecution. 
Jones  v.  Givin,  Gilb.  1S5,  220;  Bui.lek, 
J.,  in  Morgan  v.  Hughes,  2  Term  R.  225, 
232;  Freeman  v.  Arkell,  2  Barn.  &  C.  494, 
3  Dowl.  &  R.  t)G9;  Michell  v.  Williams,  11 
Mees.  &  W.  205;  Bacon  v.  Waters,  2  Allen, 
400.  And  if  the  prosecutor,  after  procur- 
ing the  arrest,  fails  to  enter  any  complaint, 
this,  with  the  attending  circumstances,  is 
sufficient  to  be  submitted  to  the  jury  as 
evidence  of  want  of  probable  cause. 
Venafra  v.  Johnscm.  10  Bing.  801,  3  Moore 
&S.  847,  and  6  Car.  &  P.  50;  McDonald 
V.  Rooke.  2  Bing.  N.  C.  217,  2  Scott,  359. 

When  the  suit  complained  of  is  a  civil  ac- 
tion, wholly  under  the  control  of  the 
plaintiff  therein,  it  would  seem  that  a 
discharge  thereof  by  him,  without  any 
judgment  or  verdict,  is  a  sufficient  termi- 
nation of  the  suit;  and  that,  for  instance, 
if  one  maliciously  causes  another  to  be 
arrested  and  held  to  bail  for  a  sum  not 
due,  or  for  more  than  isdue,  knowing  that 
there  is  no  probable  cause,  and,  after  en- 
tering his  action,  becomes  nonsuit,  or 
settles  the  case  upon  receiving  part  of  the 
sum  demanded,  an  action  for  a  malicious 
prosecution  may  be  maintained  against 
him.  Nicholson  v.  Coghill,  4  Barn.  &  C. 
21,  6  Dowl.  &  R.  12;  Watkins  v.  Lee,  5 
Mees.  &  W.  270;  Ross  v.  Norman,  5  Exoh. 
359;  Bicknell  v.  Dorion,  16  Pick.  478,  487; 
Savage  v.  Brewer,  Id.  4.53.  In  Arundell  v. 
White,  14  East,  210,  it  was  held  that  an 
entry  in  the  minute-book  of  the  sheriff's 
court  in  London,  opposite  the  entry  of  a 
suit  in  that  court,  that  it  was  withdrawn 
bj'  the  plaintiff's  order,  was  sufficient  evi- 
dence of  a  termination  of  that  suit  to 
sustain  an  action  for  malicious  prosecu- 
tion. In  Pierce  v.  Street,  3  Barn.  «&  Adol. 
397,  the  declaration,  after  setting  out  the 
suing  out  of  a  writ  in  an  ordinary  action 
at  law  against  the  plaintiff,  and  an  ar- 
rest and  holding  to  bail  thereon,  and  al- 
leging that  it  was  done  maliciouslj'  and 
without   probable   cause,  averred  that  no 


proceedings  were  thereupon  had  in  that 
action,  and  that  the  plaintiff  therein  did 
notdeclareagainst  thedefendantnor  pros- 
ecute his  suit  against  liim  with  effect,  but 
voluntarily  permitted  the  act'on  to  be 
discontinued  for  want  of  prosecution 
thereof;  whereupon  and  whereby,  and  ac- 
cording to  the  practice  of  the  court,  tlio 
suit  became  determined.  At  the  trial  of 
the  action  for  malicious  arrest,  it  appeared 
that  no  declaration  was  delivered  or  filed 
in  the  former  action,  and  that  this  action 
was  not  commenced  until  a  year  after  the 
return-day  of  that.  It  was  objected  that, 
there  being  no  judgment  of  court,  there 
was  no  evidence  of  the  determination  of 
the  suit  to  satisfy  the  averment  in  the 
declaration.  But  Lord  Lyndulrst,  C.  B., 
thought  there  was,  and  overruled  the  ob- 
jection ;  and  his  ruling  was  confirmed  bj' 
the  court  of  queen's  bench.  Lord  Tex- 
TEKDEx,  C.  J.,  saying,  "The  length  of  time 
which  had  elapsed  shows  that  the  suit 
was  abandoned  altogether;"  and  P.\rke, 
J.,  "When  the  cause  is  out  of  court,  it 
must  be  considered  as  determined.  "  Our 
own  statutes  expresslj'  provide  that,  if 
no  declaration  is  inserted  in  the  writ,  or 
filed  before  or  at  the  return  term,  it  shall 
be  a  discontinuance  of  the  action.  Gen, 
St.  c.  129,  §  9.  But  the  present  case  does 
not  require  us  to  consider  what  disposi- 
tion must  be  shown  of  a  civil  action  w'hich 
has  once  been  entered  in  court,  in  order 
to  constitute  a  final  determination  there- 
of. A  plaintiff  cannot  be  compelled  to  en- 
ter his  action,  and,  until  he  does,  may 
judge  for  himself  whether  he  will  proceed 
with  it  or  not.  If  he  does  not  enter  it,  it 
never  comes  before  the  court,  nor  becomes 
the  subject  of  any  judgment,  nor  appears 
on  its  records,  unless  the  defendant,  upon 
filing  a  complaint  at  the  return  term,  ob- 
tains judgment  for  his  Cf)sts.  If  the  de- 
fendant does  not  make  such  a  complaint, 
the  action  is  not  the  less  finally  aban- 
doned and  determined  by  the  neglect  of 
the  plaintiff  to  proceed  with  It.  Clark  v. 
Montague,  1  Gray,  440,  448;  Lombard  v. 
Oliver,  5  Gray,  8;  Jewott  v.  Locke,  G  Gray, 
233.  The  f)nly  cause  assigned  for  the  de- 
murrer being  that  the  declaration  shows 
no  determination  of  the  former  suit  in  fa- 
vor of  the  defendant  therein  by  a  judg- 
ment of  court,  it  must  be  overruled. 


(See,  also.  Brown  v.  Randall,  36  Conn.  56;  Clark  v.  Cleveland,  6  Hill,  344;  Fay  v.  O'Neill,  36  X.  Y. 
11;  Graves  v.  Dawson,  1.33  Mass.  419;  Lowe  v.  Wartman,  47  N.  J.  Law,  413,  1  Atl.  Rep.  4S9;  Bas^b6  v. 
Matthews,  L.  R.  2  C.  P.  6S4.) 


(1  Abb.  N.  C.  193.) 

MouETo.x  V.  Beecher. 

(Supreme  Court  of  New  York.    Sept.,lS76.) 

Maliciocs  Prosecctios  —  Termination  of  Pro- 
ceeding—Indictment. 
The  complaint,  in  an  action  for  a  malicious 
prosecution  of  plaintiff  by  an  indictment,  alleged 
that  a  nolle  prosc(iui  had  been  entered  as  to  the 
indictment,  by  leave  of  court,  gi-anted  on  the  mo- 
tion of  the  district  attornej-  of  the  county  in  which 
the  indictment  was  pending  and  triable,  made  by 
him  "after  consulting  with  defendant,  and  in  com- 
pliance with  his  request.  "  Held,  that  this  was  a 
sufficient  averment  of  the  termination  of  the  crim- 
inal chai-ge  in  favor  of  plaintiff. 

Appeal  from  special  term. 


Action  for  malicious  prosecution.  The 
complaint  alleged  that  defendant,  falsely 
and  maliciously,  and  witiiout  anj-  reason- 
able or  probable  cause,  charged  plaintiff 
to  the  grand  jury  with  having  uttered  and 
published,  of  and  concerning  defendant, 
certain  criminal  libels,  and  procured  the 
grand  jury  to  find  and  present  an  indict- 
ment against  plaintiff  tlierefor,  and  pro- 
cured a  warrant  for  the  arrest  of  plaintiff 
upon  said  indictment,  and  procured  plain- 
tiff to  be  arraigned,  and  compelled  him  to 
plead  to  said  indictment;  "that  plaintiff 
pleaded  not  gtiilty,  and  was  then  and  ever 
since  has  been  ready  and  anxious  to  stand 
trial   on   said   indictment;"  but   that  the 


104 


LAW  OF  TORTS. 


district  attorney  for  the  county  in  which 
the  indictment  was  found  and  whs  triable, 
"after  consulting  with  defendant,  and  in 
compliance  witli  his  request,  but  against 
the  will  and  protest  of  plaintiff,  "  moved 
the  court  to  which  the  indictment  had 
been  transferred  for  prosecution  and  trial 
"that  a  nuUe  prosequi  be  entered  as  to 
said  indictment,  and  the  prosecution  there- 
of against  the  plaintiff."  and  that  said 
court  "did  then  and  there  grant  said  mo- 
tion; and  it  was  thereupon  adjudged  and 
ordered  by  the  said  court  that  a  nolle 
prosequi  should  be  allowed  and  entered 
as  to  said  indictment  and  prosecution 
against  plaintiff,  and  the  same  was  al- 
lowed and  entered  of  record  in  said  court," 
etc.  Defendant  demurred  to  the  complaint 
on  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  acti(jn. 
On  the  hearing  on  the  demurrer  at  special 
term,  it  was  sustained.  From  the  order 
and  judgment  entered  thereon  plaintiff  ap- 
pealed to  the  general  term. 

Argued  before  Barnard  and  Gilbert, 
JJ. 

Roger  A.  Pryor,  for  appellant.  Tliomas 
G.  Shearman,  for  respondent. 

Barnard,  J.  It  was  essential  to  the 
maintenance  of  this  action  that  the  com- 
plaint should  aver  that  the  criminal  prose- 
cution alleged  to  have  been  instituted 
and  prosecuted  by  defendant  against  the 
plaintiff  has  been  terminated  in  favor  of 
the  plaintiff.  This  averment  has  no  refer- 
ence to  the  merits.  It  is  a  rule,  doubtless, 
based  upon  the  impropriety  of  permitting 
such  an  action  while  the  prosecution  com- 
plained of  was  proceeding  to  final  adjudi- 
cation in  the  proper  court.  It  would  be 
unseemly  to  permit  an  action  for  malicous 
prosecution  which  might  be  presented 
for  trial  before  the  action  on  which  it  was 
based  was  tried,  and  still  more  unseemly 
to  permit  the  action  after  the  proper  court 
had  determined  the  particular  prosecution 
complained  of  in  favor  of  the  party  who 
brought  the  same.  After  it  is  established 
that  the  action  for  malicious  prosecution 
may  be  brought,  the  fact  of  the  termina- 
tion of  the  prosecution  on  which  the  ac- 
tion rests  has  no  further  relevancy.  The 
plaintiff  must  then  prove  that  the  prose- 
cution   was  instituted   by   the  defendant 


against  the  plaintiff  without  probable 
cause,  and  maliciously.  The  prosecution 
complained  of  in  this  action  as  falsely  and 
maliciously  made  was  a  criminal  prosecu- 
tion. The  plaintiff  avers  that  the  defend- 
ant falsely  accused  him  of  a  criminal  libel, 
and  that  he  made  the  accusation  mali- 
ciously. Thecriminalcharge  resulted  in  an 
indictment,  and  the  complaint  avers  that 
the  prosecution  thei'eof  has  been  termi- 
nated in  the  plaintiff's  favor  by  the  entrj' 
ul  a  nolle  prosequi,  on  motion  of  the  dis- 
trict attorney  of  tlie  county  where  the  in- 
dictment was  pending  and  triable,  and 
with  the  leave  of  the  court ;  that  the  mo- 
tion was  made  "after  consulting  with  de- 
fendant, and  in  compliance  with  his  re- 
quest." I  think  this  was  sufficient  aver- 
ment of  the  termination  of  the  criminal 
charge  in  favor  of  the  iiiaintiff.  The  dis- 
trict attorney  of  Kings  county  was 
charged  with  the  duty  of  the  prosecution. 
The  defendant  made  his  complaint  with 
reference  to  this  fact.  The  district  attor- 
ney, at  the  request  of  the  defendant,  asked 
the  court  for  leave  to  abandon  the  prose- 
cution of  the  criminal  charge  against  the 
plaintiff,  and  the  court  granted  the  mo- 
tion, and  the  final  order  is  entered. 
What  is  needed  further  to  sustain  the  aver- 
ment that  the  particular  charge  on  which 
the  action  is  brougnt  is  ended  and  in  favor 
of  the  plaintiff?  He  asks  for  a  trial,  and 
the  court  and  district  attorney,  with  the 
defendant's  concurrence,  instead  of  a  trial, 
order  the  entry  of  a  nolle  prosequi  on  the 
indictment.  In  other  words,  the  district 
attorney  asks  leave  to  abandon  the  prose- 
cution, and  the  court  says  he  may.  If  the 
action  complained  of  as  malicious  had 
been  a  civil  action,  an  averment  that  a 
plaintiff  had  asked  leave  of  the  court  to 
abandon  it,  and  that  such  leave  had  been 
granted,  would  have  been  sufficient.  The 
district  attorney  acts  for  the  people  in 
criminal  cases,  except  that  he  must  have 
leave  of  the  court  to  enter  the  nolle  prose- 
qui. AVherethis  leave  is  obtained,  and  the 
order  is  entered,  it  is  a  record  promise  by 
the  people  that  the  indictment  will  be  no 
further  prosecuted.  I  think  the  judgment 
at  special  term  should  be  reversed,  and  the 
demurrer  overruled,  with  costs. 

Gilbert,  J.,  concurred. 


(The  authorities  differ  on  the  question  decided  bv  this  case.  See  Langford  v.  Railroad  Co.,  144 
Mass.  431,  11  N.  E.  Rep.  697;  Wood  worth  v.  Mills,  61 'Wis.  44,  20  N.  W.  Rep.  728;  Murphy  v.  Moore, 
[Pa.]  11  Atl.  Rep.  6G5;  Garing  v.  Fraser,  76  Me.  37.) 


Malicious  prosecution  of  a  civil  action. 


(46  Ohio  St.  367;  21  N.  E.  Rep.  356.) 

Pope  v.  Pollock. 

{Supreme  Court  of  Ohio.    March  26, 1889.) 

1.  Malicious  Pkosecutiox — Forcible  Extky  and 

Detaixeu. 
An  action  may  be  maintained   for  maliciously, 
and  without  probable  cause,  instituting  and  pros- 
ecuting an  action  in  forcible  entry  and  detainer, 
under  the  Ohio  statute. 

2.  Same  —  Damages  from  Prosecution  of  Civil 

Action. 
Diverse  doctrines  compared  as  to  whether  an  ac- 
tion will  lie  for  a  malicious  and  unfounded  civil 


action,   when  there  has  been  no  deprivation  of 
liberty  or  taking  of  property. 

Error  to  circuit  court,  Hamilton  county. 

The  action  below  was  commenced  July  3, 
ISSo,  by  the  filing  in  the  court  of  coma  on 
pleas  of  a  petition  which  charged  in  sub- 
stance that,  in  March,  ISso.  the  plaintiff,  by 
written  agreement,  leased  of  a  Mrs.  Bray- 
ton,  through  defendant,  as  her  agent,  for  a 
term  to  e.xpire  April  1,  ISSG,  a  lot  in  the 
count.v  of  Hamilton,  on  which  was  a 
dwelling-house   and  other  buildings;  that 


MALICIOUS  PROSECUTION. 


105 


the  plaintiff  immediatel.v  entered  into  pos- 
session, wliich  lias  since  continued,  except 
that,  during  a  portion  of  the  time,  the  de- 
fendant unlawfully  kei)t  phiintiff  out  of  a 
portiiMi  of  the  premises.  On  the  11th  of 
May,  1S8.'>,  defendant,  in  her  own  name, 
instituted  a  suit  in  forcible  entry  and  de- 
tainer, before  a  justice  of  the  peace  of  Cin- 
cinnati township,  said  county,  U)V  the  re- 
covei'v  of  possession  of  said  premises, 
whicii  suit  terminated  in  a  verdict  for  the 
plaintiff  of  "not  guilty."  Afterwards,  on 
the  17th  of  June,  1885,  defendant  institut- 
ed anothei-  lii<e  suit  before  a  justice  of  the 
peace  of  Springfield  township,  said  coun- 
ty, which  also  terminated  in  a  verdict  for 
this  plaintiff  of  "not  guilty."  Each  of 
said  actions  was  prosecuted  maliciously', 
and  without  probable  cause.  The  plain- 
tiff, l)y  reason  thereof,  was  greatly  har- 
assed and  annoyed,  much  woi-ried  and 
troubled  in  mind,  was  injured  in  reputa- 
tion among  his  neighbors,  was  caused 
great  inconvenience  and  much  loss  of  time, 
and  put  to  considerable  money  outlay,  in 
defending  said  actions.  Then  follows  a 
prayer  for  judgment.  To  this  petition  a 
general  demurrer  was  filed,  which  was 
sustained  by  the  court  of  common  pleas, 
which  judgment  was  affirmed  in  the  cir- 
cuit court.  To  procure  a  reversal  of  these 
judgments,  this  error  proceeding  is  prose- 
cuted. 

Win.    H.     Pope,  for    plaintiff    in   error. 
John  A.  Shnnk,  for  defendant  in  error. 

Spear,  .J.,  {sfter  stating'  the  facts  as 
iihovf^.)  Will  the  prosecution  of  a  suit  in 
forcible  entry  and  detainer,  which  results 
in  a  verdict  for  the  defendant,  where  the 
same  is  ])rosecuted  maliciously,  and  with- 
out probable  cause,  afford  ground  for  an 
action  in  the  nature  of  a  suit  for  malicious 
prosecution?  is  the  question  in  this  case. 
The  more  common  causes  for  actions 
for  malicious  prosecution  are  groundless 
and  malicious  prosecutions  of  criminal 
charges.  But  that  actions  of  this  kind 
can  be  maintained  where  there  has  been 
an  unjustifiable  and  malicious  seizure  of 
the  property  of  the  complaining  party,  as 
well  as  of  the  person,  there  is  no  question. 
"Whether  or  not  such  an  action  may  be 
maintained  where  there  has  been  no  dep- 
rivation of  liberty,  or  of  the  possession, 
use,  or  enjoyment  of  property,  has  been 
the  subject  of  much  discussion,  and  of  con- 
trary' holdings.  It  appears  that  in  Eng- 
land, bv  the  common  law,  jjrior  to  the 
statute'of  Marlbridge,  52  Hen.  III.,  (1259,) 
actions  of  this  character  were  allowed, 
but  since  the  passage  of  that  statute, 
which  gave  the  successful  defendant  judg- 
ment for  costs  against  the  plaintiff,  the 
right  to  maintain  such  actions  has  been 
uniformly  denied,  it  being  held  that  if  one 
prosecutes  an  ordinary  civil  action 
against  anijther  maliciously,  and  without 
reasonable  or  i)robable  cause,  an  action 
for  the  resulting  damage  is  not  maintain- 
able. So.  too,  in  this  countrj-,  many  de- 
cisions of  like  tenor  have  been  made.  The 
couj'ts  have  said  that  courts  of  law  are 
open  to  every  citizen,  and  that  the  costs 
which  the  defendant  gets  are  a  compensa- 
tion for  the  wrong.  If  every  suit  may  be 
retried  on  an  allegfition  of  malice,  the  evil 
would   be  intolerable,  and   the   malice  in 


each  subsequent  suit  would  be  likely  to 
be  greater  than  in  the  first;  and  that,  if  a 
defendant  ought  to  have  daniages  upon  a 
false  claim,  then  the  plaintiff  ought  to 
have  damages  on  a  false  plea,  which 
would  make  litigation  iuterminaljle. 
Beauchampe  v.  Croft,  Keilw.  20:  Fitzh. 
Nat.  Brev.  429;  1  Bac.  Abr.  141;  Savil  v. 
Roberts,  1  Salk.  14;  Bull.  N.  P.  11;  Parker 
V.  Langlej',  Gilb.  Cas.  163;  Goslin  v.  Wil- 
cock,  2  Wils.  305;  1  Amer.  Lead.  Cas.  2Jl, 
note;  Cooley,  Torts,  189;  Townsh.  Sland. 
&  L.  §  410;  Taylor  v.  Wilson,  1  N.  J. 
Law,  362;  Woodmansie  v.  Logan,  2  X.  J. 
Law,  68;  Kramer  v.  Stock,  10  Watts,  115; 
Thomas  v.  Rouse,  2  Brev.  75:  Ray  v. 
Law.  Pet.  C.  C.  207;  Potts  v.  Imlav.  4  N. 
.1.  Law,  330;  McNamee  v.  Miiike,  49  Md. 
122;  Muldoon  v.  Rickey,  103  Pa.  St.  110; 
Wetmore  v.  Mellinger,  64  Iowa,  751,  18  N. 
W.  Rep.  870;  Bitz  v.  Mever,  40  N.  J.  Law, 
252;  Mayer  v.  Walter,  64  Pa.  St.  283. 

Whei-e  such  suits  have  been  maintained, 
the  right  has  been  placed  uixm  the  ground 
that  taxable  costs,  including,  as  in  most 
states,  but  the  fees  of  witnesses  and  offi- 
cers of  the  court,  afford  a  very  partial  and 
inadequate  remuneration  for  the  neces- 
sary expenses  of  defending  an  unfoumled 
suit,  and  no  remedy  at  all  to  repair  the 
injury  received.  It  is  upon  this  principle, 
in  part,  that  actions  have  even  been  sus- 
tained for  malicious  criminal  prosecutions, 
in  which  no  costs  are  taxed  in  favor  of  the 
accused.  Where  an  action  is  brought  and 
prosecuted  maliciously,  and  without  prob- 
able cause,  it  is  an  abuse  of  legal  process, 
and  the  plaintiff  asserts  no  claim  in  re- 
spect to  which  he  has  anj'  right  to  invoke 
the  aid  of  the  law.  It  is  a  wrong  to  dis- 
turb one's  property  or  peace;  and  to  pros- 
ecute one  maliciously  and  without  proba- 
ble cause  is  to  do  that  person  a  wrong. 
The  common  law  declares  that  for  every 
injury  there  is  a  remedy,  and  to  deny  rem- 
edy in  such  case  would  violate  this  whole- 
some principle.  The  burden  of  establisli- 
ing  both  malice  and  want  of  pr(>bable 
cause  will  prove  a  sufficient  check  to  i-eck- 
less  suits  of  this  character.  When  the 
plaintiff  sets  the  law  in  motion,  he  is  the 
cause,  if  it  be  done  groundlessly  and  ma- 
liciously, of  defendant's  damage,  and  the 
defendant  but  stands  upon  his  legal  rights 
when  he  calls  upon  the  plaintiff  to  prove 
his  fase  to  the  satisfaction  of  judge  and 
jurv.  Vanduzor  v.  Linderman.  10  Johns. 
106"^;  Pangburn  v.  Bull,  lAVend.  345;  Whip- 
ple V.  Fuller,  11  Conn.  582;  Closson  v.  Sta- 
ples, 42  Vt.  209;  Marbourg  v.  Smith,  11 
Ka!!.  554;  Bigelow,  Torts,  (2d  Ed.)  71; 
Smith  v.  Smith,  56  How.  Pr.  316;  Bump 
V.  Betts,  19  Wend.  421;  Woods  v.  Finnell, 
13  Bush,  628;  Hoyt  v.  Macon,  2  Colo.  113; 
Payne  v.  Donegan,  9  111.  App.  56():  McCar- 
dle"  V.  McGinley.  86  Ind.  538;  Juchter  v. 
Boehm.  67  Ga.  5.34;  Lawrence  v.  Hager- 
mao,  .56  111.  68;  At  wood  v.  Monger,  Style, 
378.  See,  also,  an  al)le  review  of  the  sub- 
ject by  John  D.  Lawson.  Esq.,  of  the  St. 
Louis  bar.  21  Amer.  Law  Reg.  281. 
There  seems,  as  will  appear  by  reference 
to  these  citations,  abundant  authority  in 
other  states  of  the  Union  to  support  the 
proposition  that  a  suit  ma.v  lie  main- 
tained for  damages  arising  from  the  i)ros- 
ecution  of  an  ordinary  civil  action,  when 
the  same  is  done  maliciously,  and  without 


106 


LAW  OF  TORTS. 


probable  cause,  but  without  (listurb.ance 
to  person  or  property-.  The  precise  ques- 
tion has  not  been  made  in  Ohio,  thc^ujjjh  in 
two  cases  (Tomlinson  v.  Warner,  9  Ohio, 
104,  and  Fortman  v.  Rottier,  8  Ohio  St. 
548)  this  court  has  held  that  an  action 
njay  be  maintained  for  maliciously,  and 
without  probable  cause,  suing  out  and 
levying  a  writ  of  attacliment.  So,  when 
one  has  been  wrongfully  deprived  of  the 
use  of  his  land  by  the  prosecution,  mali- 
ciously and  without  probable  cause,  of  an 
injunction  proceeding,  the  court  hfld  (Coal 
Co.  V.  Upson,  40  Ohio  St.  17)  that  an  ac- 
tion for  malicious  prosecution  will  lie. 
The  language  of  the  opinion  (page  25)  is: 
"It  may  now  be  considered  the  approved 
doctrine  that  an  action  for  the  malicious 
prosecution  of  a  civil  suit  maj"^  be  main- 
tained whenever,  by  virtue  of  anj' order  or 
writ  issued  in  the  malicious  suit,  the  de- 
fendant in  that  suit  has  been  deprived  of 
his  personal  liberty,  or  of  the  possession, 
use,  or  enjoyment  of  property  of  value." 
It  will  be  noted  that,  where  damages  for 
the  prosecution,  maliciously  and  without 
probable  cause,  of  an  ordinary  civil  ac- 
tion, are  refused,  one  of  the  principal  rea- 
sons given  is  that  the  allowance  of  taxed 
costs  is  regarded  as  sufficient  punishment 
to  the  plaintiff  for  prosecuting,  and  recom- 
pense to  the  defendant  for  defending,  such 
an  action.  In  England  the  taxed  costs 
which  may  be  awarded  to  a  successful  de- 
fendant include  not  only  fees  of  court  offi- 
cers and  witness,  but  attorney's  charges 
for  preparing  the  case  for  trial,  and  the 
honurai'inin  of  the  barrister  who  tries  it; 
and  in  a  number  of  American  states  a  like 
taxation  of  costs  prevails.  But  in  Ohio 
the  successful  party  in  an  ordinary  action 
recovers  only  the  fees  of  witnesses  and 
court  officers,  leaving  his  ownijersonal  ex- 
penses in  preparing  the  case,  in  attending 
the  trial,  and  his  attorney's  fees  for  prep- 
aration and  for  trial,  to  be  paid  without 
reimbursement.  Taxed  costs  are  not  here 
regarded  as  affording  full  compensation 
for  expenses  incurred,  for  in  cases  where 
damages  may  be  recovered  for  malicious 
injury,  fees  of  counsel,  as  well  as  court 
costs,  are  included  in  compensatory,  and 
not  punitive,  damages.  The  reason  for 
the  rule  having  failed,  there  is  much 
ground  for  saying  that  the  rule  itself  fails. 
But  there  is  no  necessity  in  the  present 
case  for  a  determination  of  the  question 
whether  or  not  an  action  will  lie  for  the 
malicious  prosecution  of  an  ordinary  civil 
action,  without  probable  cause,  where 
there  is  no  arrest  or  seizure,  for  the  peti- 
tion of  the  plaintiff  makes  a  different  case. 
In  many  of  its  asyjects,  an  action  in  for- 
cible entry  and  detainer  is  an  extraordi- 
nary proceeding.  It  is  summary  in  its 
character,  and  may  become,  when  prose- 
cuted wrongfully,  excessively  annoj'ing 
and  harassing.  Having  given  three  days' 
notice  in  writing  to  leave  the  premises,  the 
plaintiff  may  commence  his  action  by  filing 
a  complaint  with  a  justice  of  the  peace, 
and  in  three  days  more  the  trial  may  take 
place.  See  section  6599,  Rev.  St.,  and  fol- 
lowing. The  complaint  need  not  be  sworn 
to.  If  a  continuance  is  asked  by  defend- 
ant for  more  than  eight  days,  security  for 


payment  of  rent  is  required.  The  action 
may  involve  the  possession  by  a  defendant 
of  a  home  for  himself  and  a  dependent 
family.  A  failure  to  answer,  or  an  unsuc- 
cessful defense,  may  result  in  immediate 
and  forcible  ouster,  and  this  without  ref- 
erence to  the  condition  of  the  family,  or 
the  weather, or  other  surrounding  circum- 
stances. JSo  appeal  is  allowed,  nor  is  one 
action  a  bar  to  subsequent  actions.  The 
contingency  of  pi*eparing  a  bill  of  excep- 
tions must  be  anticipated,  and  counsel 
procured  for  that;  else  a  review  of  errone- 
ous holdings  cannot  be  had.  Error  can 
be  prosecuted  only  by  leave  of  a  judge, 
and  such  proceeding  raises  questions  re- 
lating to  competency  of  evidence  only,  and 
not  questions  touching  the  weight  or  suffi- 
ciency of  the  evidence.  The  justice  is  not 
even  bound  to  sign  a  bill  where  the  objec- 
tion is  only  that  the  judgment  is  not  sus- 
tained by  sufficient  evidence.  If  petition 
in  error  is  allowed  to  be  filed,  the  party 
must  be  ready  with  security,  if  exacted, 
to  stay  execution  of  the  judgment  against 
him.  Then,  too,  the  plaintiff  may  select 
from  several  concurrent  jurisdictions  with- 
in the  county.  He  may  commence  his  ac- 
tion, if  he  so  desire,  in  the  township  fur- 
thest removed  from  the  residence  of  the 
defendant,  or  the  one  most  inaccessible, 
thus  requiring,  it  may  be,  his  adversary  to 
travel  long  distances,  and  to  transport 
his  witnesses  at  large  expense.  Failing  in 
one  action  thus  brought,  he  may  ct)ntinue 
prosecutions  until  his  pocket-book  or  his 
malice,  or  both,  become  exhausted.  Plain- 
ly, in  the  hands  of  an  unscrupulous  prose- 
cutor, possessed  of  abundant  means,  this 
kind  of  action  may  become  grievously  op- 
pressive, and  it  is  idle  to  say  that  the^ 
small  bill  of  costs  before  a  justice  is  either 
a  sufficient  punishment  to  inflict  upon  a 
malicious  prosecutor,  or  constitutes  any 
recompense  to  a  wronged  defendant.  The 
statute  gives  to  such  plaintiff  the  right  to 
resort  to  his  action  as  often  as  he  may 
choose,  and  to  bring  it  before  any  justice 
within  the  county,  but  this  implies  no 
right  to  prosecute  maliciously  and  with- 
out probable  cause.  A  groundless  action, 
prosecuted  w^ith  malice,  is  never  justifia- 
ble, and  a  wrong  suffered  by  such  prosecu- 
tion in  forcible  entry  and  detainer  should 
not  be  without  remedy.  Nor  is  there 
force  in  the  objection,  as  applied  to  this 
case,  that  intolerable  evils  would  arise 
from  a  multiplicity  of  suits  thus  encour- 
aged. The  law-making  powerhas  seen  fit 
to  provide  by  this  statute  that  a  judg- 
ment shall  not  be  a  bar  to  any  after  ac- 
tion. We  have,  in  this  provision,  legisla- 
tive declaration  to  the  effect  that  evils 
may  not  be  expected  to  follow  repeated 
trials  of  issues,  under  this  statute.  In 
consonance  with  this  policy,  it  may  be 
reasonable  to  conclude  that,  if  repeated 
actions  to  determine  the  right  to  posses- 
sion will  not  work  intolerable  evils,  a  re- 
view of  the  facts  by  a  suit  for  malicious 
prosecution  will  not  have  that  effect.  At 
all  events,  the  right  to  so  review  will  nat- 
urally tend  to  check  any  evils  that  might 
flow  from  a  misuse  of  the  statut*jry  right 
to  repeated  trials. 
Judgment  reversed. 


(See,  also.  Brand  v.  Hinchman.  6S  Mich.  .590,  36  N.  W.  Rtp.  (;64;  McPherson  v.  Runyon,  41  Minn. 
524,  43  N.  W.  Rep.  392;  Eastin  v.  Bank,  66  Cal.  123,  4  Pac.  Rep.  1106.) 


MALICIOUS  PROSECUTION. 


107 


(19  Wend.  421.) 

Bump  v.  Betts. 

(Supreme  Court  of  New  York.    May,  1838.) 

Malicious  Pkosecotion  —  Attachment  against 
Pkopekty. 
The  rule  that  plaintiff,  in  an  action  for  a  mali- 
cious prosecution,  must  show  the  determination 
of  such  prosecution  in  his  favor,  does  not  apply 
where  the  proceeding  was  by  attachment  against 
his  property,  in  his  absence,  and  he  had  no  op- 
portunity to  defend.  A  judgment  aeainst  him, 
under  such  circumstances,  is  not  conclusive  evi- 
dence of  probable  cause  or  of  want  of  malice,  as 
in  cases  of  personal  service  of  process. 

Motion  for  new  trial. 

Action  on  the  case  for  malicious  prose- 
cution. It  appeared  that  defendant,  in 
the  absence  of  plaintiff,  procured  an  at- 
tachment against  plaintiff's  property,  al- 
leging as  ground  therefor  that  plaintiff, 
being  a  resident  of  the  county,  had  de- 
parted therefrom  with  intent  to  defraud 
his  creditors:  and  that,  in  the  action  thus 
conimenced,  <lefendant  obtained  judgment 
against  plaintiff,  and  caused  execution  to 
be  issued  thereon,  and  the  property  of 
plaintiff  to  be  sold.  Plaintiff  gave  evi- 
dence tending  to  show  that  the  demand 
on  which  the  action  was  brought  and  the 
judgment  was  obtained  had  been  paid  by 
h'm  before  the  proceedings  were  com- 
menced. Defendant  made  a  motion  for  a 
nonsuit,  which  was  granted,  the  judge 
holding  that  the  presumption  of  want  of 
probable  cause,  arising  from  the  fact  of 
paj'ment,  was  rebutted  by  the  judgment 
recovered  by  defendant  and  remaining  un- 
reversed, and  that  no  malic^e  was  shown  , 
and  a  nonsuit  was  entered  accordingly. 
Plaintiff  moved  to  set  aside  the  nonsuit, 
and  for  a  new  trial. 

J.  A.  Spencer,  for  the  motion.  R.  B. 
Bates,  opposed. 

Nelson,  C.  J.  This  action  lies  against 
any  person  who  maliciously,  and  without 
probable  cause,  prosecutes  another,  where- 


by the  party  prosecuted  sustains  an  in- 
jury, either  in  person,  property,  or  repu- 
tation. 1  Selw.  N.  P.  806;  Saund.  PI.  & 
Ev.  651;  2  Chit.  PI.  248,  note  r;  Savill  v. 
Koberts,  12  Mod.  208;  Payne  v.  Partridge, 
1  Salk.  12;  Sutton  v.  Johnstone,  1  Term 
R.  4915,  550.  As  a  general  rule,  the  plaintiff 
must  aver  in  his  declaration,  and  prove 
on  the  trial,  the  determination  of  the  for- 
mer suit  in  his  favor,  (Saund.  PI.  &  Ev. 
858;  2  Chit.  PI.  245,  note  e,j  though  the 
omission  of  the  averment  would  be  cured 
after  verdict,  (1  Saund.  PI.  &  Ev.  228-b, 
note  1.)  See,  also,  Poynton  v.  Forster.  3 
Camp.  61,  note  b.  The  reason  fur  this 
proof  is  obvious,  for  otherwise  he  might 
recover  in  this  action,  and  still  be  con- 
victed or  have  judgment  against  him  in 
theformersuit.  Fislier  v.  Bristow,l  Doug. 
215.  But  it  does  not  apply  where  the 
malicious  prosecution  complained  of  arises 
out  of  proceedings  on  attachment,  in  the 
absence  of  th.e  party  defendant,  in  which 
no  opportunity  is  afforded  him  to  defend 
the  suit.  A  judgment  against  him,  under 
such  circumstances,  cannot  be  deemed  con- 
clusive evidence  of  probablecause,  or  want 
of  malice,  as  in  cases  of  personal  service  of 
process.  The  rule  was  first  laid  down  in 
reference  to  these  cases,  and,  when  thus 
confined,  is  a  sound  one,  but  altogether 
inapplicable  in  respect  to  alleged  malicious 
suits  under  this  new  statute  remedy  given 
to  a  plaintiff.  The  reason  of  the  rule  ceas- 
ing, the  rule  itself  should  give  way,  and 
must,  or  this  mode  of  redress  for  a  wrong, 
more  likely  to  be  committed  in  ex  parte 
proceedings  than  in  litigated  cases,  must 
be  denied.  It  is  obvious  the  damage  to^ 
the  party  in  the  former  instance  w^ili  usu- 
ally be  much  more  serious  than  in  the  lat- 
ter. In  the  one  case  there  will  be  a  recov- 
ery against  him  for  such  amount  as  his 
adversary,  on  an  ex  parte  hearing,  thinks 
proper  to  demand,  while  in  the  other  h& 
is  subjected  only  to  the  costs  of  a  defense. 
New  trial  granted,  costs  to  abide  the 
event. 


(See,  also,  Hyde  v.  Greuch,  62  Md.  5T7;  Steward  v.  Gromett,  7  C.  B.  N.  S.  191.) 


Malicious  abuse  of  process. 


(4  Bing.  N.  C.  212.) 
Grainger  v.  Hill  et  ah 

(Court  of  Common  Pleas.    Jan.  20,  1838.) 

1.  Abuse  of  Pkocess — Arrest. 

Sheriff's  ofticers,  having  a  writ  for  the  arrest 
of  plaintiff  in  an  action  brought  by  defendants 
against  him,  came  to  plaintiff,  who  was  ill  in 
bed,  and  told  him  that,  unless  ne  would  deliver 
up  a  certain  document  or  find  bail,  they  must 
either  take  him  or  leave  a  man  with  him.  Held, 
that  this  was  a  sufldcient  restraint  on  plaintiff's 
person,  without  actual  contact,  to  amount  to  an 
arrest,  whicti  would  sustain  an  action  by  plain- 
tiff for  a  malicious  abuse  of  the  process ;  and  that 
defendants,  having  repaid  to  plaintiff,  on  a  set- 
tlement between  them,  the  caption  fee  charged 
to  him  by  the  officers,  thereby  admitted  the  pro- 
priety of  such  charge. 

2.  Same — Termination  of  Proceeding —Want  of 

Probable  Cause. 
In   an  action   for   abusing   the   process  of  the 
court  in  order  illegally  to  compel  a  party  to  give 
up  his  property,  it  is  not  necessary  to  prove  that 


the  action  in  which  the  process  was  improperly 
employed  has  been  determined,  or  to  aver  that 
the  process  was  sued  out  without  reasonable  or 
probable  cause. 

Motions  for  entry  of  nonsuit  instead  of 
verdict  for  plaintiff,  and  in  arrest  of  judg- 
ment. 

Action  on  the  case  by  Grainger  against 
Hill  and  another.  Defendants  pleaded 
the  general  issue.  At  the  trial  it  appeared 
that  in  September,  1836.  plaintiff,  by  deed, 
mortgaged  to  defendants  for  £80,  being- 
money  loaned  by  them  to  him,  a  vessel  of 
which  he  was  owner  and  master.  The 
money  was  to  be  repaid  in  September,  1S37; 
and  plaintiff  was  to  retain  the  register  of 
the  vessel  in  order  to  pursue  his  voyages. 
In  November,  1836,  defendants,  under  some 
apprehension  as  to  the  sufficiency  of  their 
security,  resolved  to  possess  themselves  of 
the  ship's  register :  and  for  this  purpose, 
after  threatening   to   arrest   the  plaintiff 


108 


LAW  07^^  TORTS. 


unless  he  paid  the  money,  they  made  an 
affidavit  of  debt,  sued  out  a  cupias  in- 
dorsed for  bail  iu  the  sum  of  £95.  17s.  (id. 
iu  an  action  of  assumpsit,  and  sent  tn'o 
sheriff's  officers  with  the  writ  to  plaintiff, 
who  was  lying  ill  in  bed  from  the  effects  of 
a  wound.  A  surgeon  pr(;sent  perceiving 
he  could  not  be  removed,  one  of  the  defend- 
ants said  to  the  sheriff's  officers,  "Don't 
take  him  awaj';  Ipave  the  young  man 
withliim."  The  officers  then  told  plain- 
tiff they  had  not  come  to  take  him,  but  to 
get  the  ship's  register ;  but  that  if  he  failed 
to  deliver  the  register,  or  to  find  bail,  they 
must  either  take  him  oi-  leave  one  of  the 
officers  with  him.  Plaintiff,  being  unable 
to  procure  bail,  and  being  much  alarmed, 
gave  up  the  register.  Plaintiff  afterwards 
came  to  an  arrangement  with  defendants; 
was  discharged  from  the  arrest ;  repaid  the 
money  borrowed  on  mortgage;  and  re- 
ceived from  defendants  a  release  of  the 
mortgage  deed.  No  further  steps  were 
taken  iu  the  action  of  assumpsit.  Upon 
this  arrangement,  a  caption  fee  which  had 
been  charged  and  paid  by  plaintiff  to  the 
sheriff's  officers  w'as  repaid  by  defendants 
to  plaintiff.  The  jury  found  a  verdict  for 
plaintiff.  Counsel  for  defendants,  pursu- 
ant to  leave,  moved  to  enter  a  nonsuit  in- 
stead of  the  verdict,  and  also  moved  in 
arrest  of  judgment,  and  obtained  a  rule  to 
show  cause. 

Mr.  Talfourd,  Serj.,  and  Mr.  James, 
showed  cause.  Mr.  Taddy  and  R.  V.  Rich- 
ards, in  support  of  the  rule, 

TiNDAL,  C.  J.  This  is  a  special  action 
on  the  case,  iu  which  the  plaintiff  declares 
that  he  was  the  master  and  owner  of  a 
vessel  which,  in  September,  1.S36,  he  mort- 
gaged to  the  defendants  for  the  sum  of  £80, 
with  a  covenant  for  repayment  in  Septem- 
ber, 1837,  and  under  a  stipulation  that,  in 
the  mean  time,  the  plaintiff  should  retain 
command  of  the  vessel,  and  prosecute  voy- 
ages therein  for  his  own  profit;  that  the 
defendants,  in  order  to  compel  the  plain- 
tiff, through  duress,  to  give  up  the  register 
of  the  vessel,  without  which  he  could  not 
go  to  sea,  before  the  money  lent  on  mort- 
gage became  due,  threatened  to  arrest  him 
for  the  same  unless  he  immediately  paid 
the  amount;  that,  upon  the  plaintiff  refus- 
ing to  pay  it,  the  defendants,  knowing  he 
could  not  provide  bail,  arrested  him  under 
a  capias,  indorsed  to  levy  £95.  17s.  6d  ,and 
kept  him  imprisoned  until,  by  duress,  he 
was  compelled  to  give  np  the  register, 
which  the  defendants  then  unlawfully  de- 
tained, by  means  whereof  the  plaintiff  lost 
four  voyages  from  London  to  Caen. 
There  is  also  a  count  in  trover  for  the  reg- 
ister. The  defendants  pleaded  the  general 
issue;  and,  after  a  verdict  for  the  plaintiff, 
the  case  comes  before  us  on  a  double 
ground, — under  an  application  for  a  non- 
suit, and  in  arrest  of  judgment. 

The  first  ground  urged  for  a  nonsuit  is 
that  the  facts  proved  with  respect  to  the 
writ  of  capias  do  not  amount  to  an  arrest. 
It  appears  to  me  that  the  arrest  was  suffi- 
ciently established.     Thefacts  are  that  the 

(See,  also,  Wood  v.  Graves,  144  Mass.  365, 11  N.  E.  Rep.  567;  Page  v.  Gushing,  38  Me.  523;  Bebinger 
V.  Sweet,  1  Abb.  N.  C.  263;  Hazard  v.  Harding,  68  How.  Pr.  326.) 


sheriff's  officer  comes  with  a  capias  to  the 
plaintiff,  when  he  is  ill  in  bed,  and  tells 
him  that,  unless  he  delivers  the  register  or 
finds  bail, he  musteither  take  him  or  leave 
a  man  with  him.  Without  actual  con- 
tact, the  officer's  insisting  that  the  plain- 
tiff should  produce  the  register,  or  find 
bail,  shows  that  the  i)laintiff  was  in  a  sit- 
uation in  vvhich  bail  was  to  be  procured. 
That  was  a  sufficient  restraint  upon  the 
plaintiff's  person  to  amount  to  an  arrest. 
The  authority  in  Buller's  Nisi  Prius,  p.  ()2, 
goes  the  full  length:  "If  the  bailiff,  who 
has  a  process  against  one,  says  to  him, 
when  he  is  on  horseback  or  in  a  coach, 
'You  are  my  prisoner;  I  iiave  a  writ 
against  you,'  upon  which  he  submits, 
turns  back,  or  goes  with  him,  though  the 
bailiff  never  touched  him,  yet  it  is  an  ar- 
rest, because  he  submitted  to  the  process." 
But  the  matter  does  not  rest  there;  for, 
upon  the  suit  being  arranged,  a  caption 
fee,  which  had  been  charged  by  the  officer 
to  the  plaintiff,  was  repaid  to  him  by  the 
defendants,  who  thereby  admit  the  pro- 
priety of  the  charge. 

The  second  ground  urged  for  a  nonsuit 
is  that  there  was  no  proof  of  the  suit  com- 
menced by  the  defendants  having  been 
terminated.  But  the  answer  to  this,  and 
to  the  objection  urged  in  arrest  of  judg- 
ment, namely,  the  omission  to  allege  want 
of  reasonalile  and  probable  cause  for  the 
defendant's  proceeding,  is  the  same:  that 
this  is  an  action  for  abusing  the  process  oj 
the  law  by  applying  it  to  extort  property 
from  the  plaintiff,  and  not  an  action  for  a 
malicious  arrest  or  malicious  prosecution, 
in  order  to  support  which  action  the  ter- 
mination of  the  previous  proceedina:  must 
be  proved,  and  the  absence  of  reasonable 
and  probable  cause  be  alleged  as  well  as 
proved.  In  the  case  of  a  malicious  arrest, 
the  sheiiff,  at  least,  is  instructed  to  pursue 
the  exigency'  of  the  writ.  Here  the  direc- 
tions given,  to  com  pel  the  plaintiff  to  yield 
up  the  register,  were  no  part  of  the  duty 
enjoined  by  tlie  writ.  If  the  course  pur- 
sued by  the  defendants  is  such  that  there 
is  no  precedent  of  a  similar  transaction, 
the  plaintiff's  remedy  is  by  an  action  on 
the  case,  applicable  to  such  new  and 
special  circumstances,  and,  his  complaint 
being  that  the  process  of  the  law  has  been 
abused,  to  effect  an  object  not  within  the 
scope  of  the  process,  it  is  immaterial 
whether  the  suit  which  that  process  com- 
menced has  been  determined  or  not,  or 
whether  or  not  it  was  founded  on  reason- 
able and  probable  cause. 

As  to  the  count  in  trover,  if  thetaking  of 
the  register  was  wrongful,  that  taking 
was  of  itself  a  conversion,  and  no  demand 
and  refusal  were  necessary  as  a  prelimi- 
nary to  this  action.  It  seems  to  me  that 
taking  the  property  of  another  without 
his  consent,  by  an  abuse  of  the  process  of 
the  law,  must  be  deemed  a  wrongful  tak- 
ing, and  therefore  this  rule  must  be  dis- 
charged. 

Park,  Vacghan,  and  Bosanquet,  JJ., 
concurred. 


CONSPIRACY. 


10» 


CONSPIRACY. 


(52  N.  J.  Law,  284;  20  Atl.  Rep.  485.) 

Van  Horn  et  al.  v.  Van  Hokn  et  al. 

(Supreme  Court  of  New  Jersey.    Oct.  15, 1890.) 

1.  CoNSPiRACT — Malice. 

An  action  will  lie  for  a  combination  or  con- 
spiracy, by  fraudulent  and  malicious  acts,  to 
drive  a  trader  out  of  business,  resulting  in  dam- 
ages. 

2.  Same. 

The  gravamen  in  such  an  action  is  not  the  con- 
spiracy, but  the  malice;  the  former  is  matter  of 
aggravation  or  inducement  only,  in  the  pleading 
and  evidence,  under  which  one  or  all  of  the  de- 
fendants may  be  found  guilty. 

Case  certified  fr«ji\i  circuit  court,  Essex 
county  ;  before  Justice  Depur. 

The  defendants,  Amos  H.Van  Horn  and 
Casper  Soer,  Jr.,  were  summoned  to  an- 
swer James  Van  Horn,  and  Emma  1).  Van 
Horn,  liis  wife,  in  tort,  for  a  conspiracy 
or  combination  to  break  up  the  wife's  sep- 
arate business  of  selling  fancy  g(iods  on 
consignment  at  Newark.  Two  firms  of 
wholesale  jobbers  in  fancj'  and  millinery 
goods  had  agreed  verbally  to  suppl3'  her 
on  credit  with  a  stock  of  such  goods,  to  l)e 
sold  by  her  on  commission,  limiting  the 
total  amount  to  $2,500.  One  of  said  firms 
had,  in  pursuance  of  the  agreement  with 
her,  sent  $500  worth  of  goods,  which  were 
received  and  placed  in  her  store  for  sale, 
and  she  was  daily  expecting  the  balance. 
With  this  prefatory  statement,  the  decla- 
ration charges  that  the  defendants,  mali- 
ciously intending  to  injure  and  drive  the 
said  Emma  D.  Van  Horn  out  of  business, 
and  into  public  scandal,  shame,  and  dis- 
grace, and  to  injure  her  in  her  credit  and 
business,  and  to  prevent  her  from  acquir- 
ing any  profit  or  gain  therefrom,  or  from 
continuing  the  same,  did  maliciously  con- 
spire, combine,  and  agree  to  prevent  her 
from  enjoying  and  continuing  her  busi- 
ness, and  in  pursuance  of  said  conspira- 
cy, etc.,  did  entice  into  their  store  in  New- 
ark one  of  the  plaintiffs'  employes,  and 
by  artful  persuasion  and  threats  induced 
her  to  tell  where  the  plaintiff's  stock 
of  goods  was  purchased,  telling  her  the 
stock  would  be  taken  from  her,  and  the 
business  closed  up;  and,  in  pursuance 
and  in  further  performance  of  their  unlaw- 
ful intent  and  combination,  endeavored 
to  prevent  the  customers  and  friends  of 
the  plaintiff  from  dealings  with  her,  by 
falsely  and  fraudulently'  repres«nting  to 
them  that  she  would  not  be  able  to  carry 
on  her  business,  but  would  have  to  close 
up,  as  she  was  selling  goods  that  did  not 
belong  to  her.  and  living  off  the  i)roceeds, 
instead  of  accounting  therefor,  and  by 
isending  threatening  notes  and  messages 
to  them,  designed  to  intimidate  them 
from  having  anj'  dealings  with  her,  and 
did  threaten  to  pursue  her  until  she  was 
ruined.  That  in  further  pursuance  of 
such  combination,  and  by  means  of  fraud 
and  deceit,  they  did  persuade  the  said  firm 
in  New  York  ito  decline  to  complete  their 
contract,    and   did   prevail   on    them,    by 


means  of  corrupt,  fraudulent,  and  deceit- 
ful representations  and  statements  as  to 
the  personal  and  business  character  and 
standing  of  the  i)laintiff,  to  remove  the 
stock  alreadj'  supplied  her,  and  refuse  to 
deliver  her  other  goods  as  agreed  for, 
leaving  her  entirely  without  an\'  stock  to 
sell,  or  customers  tu  purchase  from  her, 
by  means  whereof  she  was  left  without 
stock  and  credit  with  the  said  firms,  and 
could  not  obtain  goods  from  other  pai'- 
ties,  and  was  driven  out  of  her  business 
and  occupation,  and  deprived  of  the  prof- 
it and  livelihood  which  she  was  making 
and  daily  increasing.  To  this  declara- 
tion a  general  demurrer  was  filed,  and 
joinder  added. 

Argued  at  February  term,  1890,  before 
Bkasley,  C.  J.,  and  Depvk  and  Scudder, 
JJ. 

K.  H.  McCarter,  for  plaintiffs.  Samuel 
Kalisch,  for  defendants. 

ScuDDER,  J.  The  merely  formal  parts  of 
this  declaration  will  not  be  considered  on 
the  general  demurrer,  but  the  whole  will 
3e  examined  to  determine  whether  it  sets 
orth  in  substance  a  legal  cause  of  action. 
The  case  has  been  elaborately  discussed 
by  counsel,  because  the  principles  in- 
volved may  affect  other  cases  of  even 
greater  importance  than  this,  and  lead  to 
serious  complications  where  actions  are 
brought,  between  rivals  in  business,  or 
those  who  interfere  with  the  ordinary 
course  of  trade  to  the  detriment  of  oth- 
ers. A  careful  consideration  of  the  subject 
has  led  me  to  the  conclusion  that  this  case 
is  readily  distinguishable  from  many  that 
have  been  cited  in  the  argument,  and 
does  not  involve  many  of  the  questions 
that  have  been  presented.  It  is  not  neces- 
sary to  consider  the  oflfice  of  the  ancient 
writ  of  conspiracy,  and  the  jjrocess  by 
which,  in  time,  it  was  superseded  by  the 
later  and  more  efficacious  action  on  the 
case  for  conspiracy,  and  the  still  more 
modern  action  for  malicious  prcjsecution. 
Nor  will  it  now  be  advantageous  to  show 
how  long  and  difficult  it  was  to  separate 
the  idea  of  a  criminal  conspiracy  at  com- 
mon law,  where  the  agreement  or  conspir- 
acy was  the  gravamen  of  the  oflense, 
from  the  real  complaint  in  a  civil  action, 
that  the  combination  of  two  or  more 
persons  has  enabled  them  to  inflict  a  great 
wrong  on  the  plaintiff.  The  combination 
or  conspiracy  in  the  latter  case  was  there- 
fore a  matter  of  aggravation  or  induce- 
ment only,  of  which  one  or  all  might  be 
found  guilty;  while  in  the  former  it  was 
essential  to  show  that  two  or  more  had 
joined  in  an  agreement  to  do  an  unlaw- 
ful act,  or  to  do  a  lawful  act  in  an 
unlawful  manner.  The  distinction  is 
now  well  established  that  in  civil  actions 
the  conspiracy  is  not  the  gravamt-D  of 
the  charge,  but  may  be  both  pleaded 
and  proved  as  aggravating  the  wrong 
of    which     the    plaintiff    complains,    and 


no 


LAW  OF  TORTS. 


enabling  him  to  recover  against  all  as 
joint  tort-feasors.  If  he  fails  in  the  proof 
of  a  conspiracy  or  concerted  design,  he 
may  still  recover  damages  against  such 
as  are  shown  to  be  guilty  of  the  tort  with- 
out such  agreement.  Pollock  on  Torts, 
267;  Garing  v.  Fraser,  76  Me.  37;  Hutch 
ins  V.  Hutchins,  7  Hill,  104;  .Jones  v.  Bak- 
er, 7  Cow.  445;  Parker  v.  Huntington,  2 
Gray,  124.  The  declaration  begins  in  this 
form,  and  is  unexceptionable  in  this  par 
tieular.  It  is  an  action  on  the  case  set- 
ting forth  a  malicious  conspiracy  or  con- 
federation, with  the  means  employed  to 
effect  its  purpose,  and  the  resulting  dam- 
ages to  the  plaintiff.  No  furtlier  specifica- 
tion is  required  tlian  the  general  terms  in 
which  it  is  pleaded  in  the  declaration. 

We  have  n(»t  presented  for  determina- 
tion in  this  pleading  the  vexed  question 
whether  an  action  will  lie  against  a  third 
person  for  the  malicious  procurement  of 
the  breach  of  a  contract,  if  by  such  pro- 
curement damage  was  intended  to  result 
and  did  result  to  the  plaintiff.  Lumley  v. 
Gye,  2  El.  &  Bl.  216;  Bo  wen  v.  Hall,  6  Q. 
B.  Div.  333.  In  the  opinion  of  Mr.  Pollock, 
ubi  supra,  the  difficulties  in  such  cases 
disappear,  or  are  greatly  reduced,  when 
the  cause  of  action  is  considered  as  belong- 
ing to  the  class  in  which  malice,  in  the 
sense  of  actual  ill  will,  is  a  necessary  ele- 
ment. Here  the  whole  pleading  is  based 
on  the  malicious  conduct  of  thedeiendants 
in  destroying  the  plaintiff's  credit  and 
patronage,  and  breaking  up  her  business 
and  means  of  livelihood.  The  case  is, 
however,  further  distinguished  from  the 
cases  cited  above,  and  separated  from  the 
questions  of  difficulty  involved  in  some  of 
them,  because  here  no  breach  of  con- 
tract is  alleged.  There  was  no  binding 
contract  between  the  New  York  firms  and 
the  plaintiff  upon  which  they  could  be 
sued  for  a  breach.  Where  there  is  a  sua- 
ble contract  between  a  contractor  and  con- 
tractee,  there  is  difficulty,  in  principle,  in 
showing  privity  in  another,  or  to  make 
the  person  who  procures  a  breach  of  the 
contract  the  proximate  cause  of  injury. 
The  party  who  breaks  the  contract,  for 
whatever  cause,  whether  by  procurement 
of  others  or  of  his  own  volition,  is  prima- 
rily responsible  to  the  other  party;  and 
the  procurer,  it  would  seem,  can  only  be 
held  responsible  for  the  breach  where 
there  is  malice  shown  to  the  sufferer,  giv- 
ing a  distinct  cause  of  action  for  the  mal- 
ice which  caused  the  breach  of  the  con- 
tract resulting  in  damages  to  him.  The 
plaintiff  Emma  D.  Van  Horn,  it  is  alleged, 
was  selling  goods  on  consignment  from 
others,  with  the  expectation  of  greater 
consignments  in  the  future.  If  the  con- 
signors refuse  to  send  the  goods  to  her,  it 
does  not  appear  that  she  could  have  any 

(See,  also,  Wildee  v.  McKee,  111  Pa.  St.  335 
131,  56  Hud,  610;  Findlay  v.  McAllister,  113  U.  S. 
137  Mass.  153 ;  Rundell  v.  Kalbf us,  125  Pa.  St.  i: 
N.  Y.  359.) 


remedy  against  them.  They  could  send 
or  recall  them  at  pleasure.  Thecomplaint 
here  is  that  the  goods  in  the  plaintiff's 
possession  were  recalled,  and  her  advan- 
tageous arrangement  for  credit  with  the 
consignors  ended,  by  the  fraudulent  and 
malicious  act  of  the  defendants.  If  she 
have  no  remedy  against  the  defendants, 
she  can  have  none  against  others  for  the 
wrong  which  she  claims  she  has  suffered. 
The  difference  between  this  action  and 
slander  is  well  stated  in  Riding  v.  Smith, 
1  Exch.  Div.  91,  where  a  slander  against 
the  wife  was  charged  as  having  injured 
the  husband's  business.  Her  name  was 
stricken  from  the  record  as  a  joint  plain- 
tiff, and  the  action  was  allowed  to  pro- 
ceed by  the  husband,  as  a  trader  carrying 
on  business,  founded  on  an  act  done  by 
the  defendant  which  led  to  the  loss  of 
trade  and  custom  by  the  plaintiff.  It  was 
maintainable  on  the  ground  that  the  inju- 
ry to  the  plaintiff's  business  was  the  nat- 
ural consequence  of  the  words  spoken, 
Avhich  would  prevent  persons  resorting  to 
the  plaintiff's  shop.  Upon  the  whole  case 
presented  in  the  declaration,  Mogul  Steam- 
Ship  Co.  V.  McGregor,  21  Q.  B.  Div.  544,  23 
Q.  B.  Div.  598,  is  important  to  aid  in  pre- 
serving the  distinction  between  injuries 
caused  by  mere  rivalries  in  business,  with- 
out the  intention  of  ruining  the  trade  of 
the  plaintiff,  and  those  where  such  intent 
is  shown  with  personal  malice  towards 
him.  In  the  first  report.  Lord  Chief  Jus- 
tice CoLKRiDGE  says:  "It  is  too  late  to  dis- 
pute, if  I  desired  to  do  so.  as  I  do  not, 
that  a  wrongful  and  malicious  combina- 
tion to  ruin  a  man  in  his  trade  may  be 
ground  for  such  an  action  as  this."  In 
the  later  report  Lord  Justice  Fry,  after  a 
full  statement  of  cases,  says  that  no  mere 
competition  carried  on  for  the  purpose  of 
gain,  and  without  actual  malice,  is  ac- 
tionable, even  though  intended  to  drive 
the  rival  in  trade  away  from  his  place  of 
business,  and  though  that  intention  be 
actuallj^  carried  into  effect.  Lord  Esher, 
M.  R.,  dissented.  It  was  decided  that  the 
exclusion  of  the  plaintiffs,  rival  freighters, 
from  participation  in  a  5  per  cent,  rebate 
on  freight  on  teas  from  China,  not  being 
through  malice,  but  in  competition  to  in- 
crease their  own  business,  was  not  ac- 
tionable. The  basis  of  action  seems  here 
to  be,  as  stated  in  the  declaration,  the 
fraudulent  and  malicious  acts  of  the 
defendants  in  driving  the  plaintiff  Emma 
D.  Van  Horn  out  of  her  business.  The 
statements  of  the  means  used  to  effect  this 
purpose  all  combine  to  produce  a  single 
cause  of  action,  and  are  not  objectionable 
for  duplicity.  But  if  there  were  duplicity 
in  the  pleadings,  this  is  not  ground  for  a 
general  demurrer. 
The   demurrer  should  be  overruled. 

,  2  Atl.  Rep.  108;  Lee  v.  Kendall,  11  N.  Y.  Supp. 
104,  5  Sup.  Ct.  Rep.  401 ;  Engstrom  v.  Sherburne, 
3,  17  Atl.  Rep.  238;  Verplanck  v.  Van  Buren,  76 


SLANDER  AND  LIBEL. 


Ill 


SLANDER   AND   LIBEL. 


I.  SLANDER. 
A.  Slander  per  se. 


1.  Charge  of  crime. 


(3  Hill,  21.) 

Young  v.  Miller. 

(Supreme  Court  of  New  Yorli.    May  Term,  1842.) 

1.  Slander — Words  Imputing  Crime — The  Gen- 

eral American  Rule. 
Words  imputing  a  charge  which,  if  true,  would 
subject  the  party  charged  to  an  indictment  for  a 
crime  involving  moral  turpitude,  or  subject  him 
to  an  infamous  punishment,  are  in  themselves  ac- 
tionable. 

2.  Same— Charge  of  Removing  Landmark. 
The  removal  of  a  landmark  being  made  by  stat- 
ute (2  Rev.  St.  N.  Y.  pp.  695,  697,  §§  32,  40)  indict- 
able as  a  misdemeanor  and  punishable  by  fine 
and  imprisonment  in  the  county  jail,  and  also 
involving  moral  turpitude,  words  charging  a  per- 
son with  that  offense  are  actionable  per  se. 

Demurrer  to  declaration. 

Action  for  slander.  The  defamatory 
words  alleged  in  the  declaration  to  have 
been  spoken  b.v  defendant  of  and  concern- 
ing plaintiff  were  as  follows:  "You  [the 
said  plaintiff  meaning]  have  removed  my 
landmark,  [meaning  the  monument  to 
designate  the  corner  or  boundary  of  de- 
fendant's land.]"  "You  [the  said  plain- 
tiff meaning]  have  removed  my  landmark, 
[meaning  the  monument  of  said  defend- 
ant's land,]  and  I  [the  said  defendant 
meaning]  can  prove  it.  "  Also  the  latter 
words,  with  the  addition,  "by  George 
Wilkins. "  Also  the  same  words,  with  the 
addition,  "and  cursed  is  he  that  removeth 
his  neighbor's  landiiiark,"  Also,  "Curs- 
ed is  he  that  removeth  hi8  neighbor's 
landmark,  and  you  [the  said  plaintiff 
meaning]  have  done  it;"  meaning  that 
plaintiff  had  removed  the  monument  of 
defendant's  land,  and  thereby  then  and 
thei'e  meaning  to  charge  plaintiff  with 
the  offense  of  willfully  and  maliciously 
removing  the  monument  designating  the 
corner  or  other  point  in  the  boundary  of 
defendant's  land.  Defendant  demurred  to 
the  declaration  on  the  ground  that  the 
words  were  not  actionable  in  themselves, 
and  that  there  was  no  allegaticm  of  special 
damage.     Plaintiff  joined  in  demurrer. 

N.  Hill,  Jr.,  and  .S'.  Stevens,  in  support  of 
the  demurrer.     VV.  A.  Beach,  opposed. 

Bkonson,  J.  There  has  been  much  dis- 
cussion in  the  books  upon  the  question, 
what  words  are  actionable  in  themselves, 
when  not  spoken  of  tlie  plaintiff  in  his 
office,  profession,  or  calling?  But  it  will 
be  unnecessary  to  examine  the  cases  at 
large,  for  the  reason  that  a  rule  has  been 
laid  down  and  acted  upon  in  this  state, 
which,  although  not  entirely  satisfactory 
to  my  mind.  I  feel  bound  to  follow.  In 
I'rooker  v.  Coffin,  5  Johns.  ISS,  the  court, 
"upon    the    fullest     consideration,"    laid 


down  the  following  rule:  "In  case  the 
charge,  if  true,  will  subject  the  party 
charged  to  an  indictment  for  a  crime  in- 
volving moral  turpitude,  or  subject  him 
to  an  infamous  puni.shment,  tiien  the 
words  will  be  in  themselves  actionable." 
In  Widrig  v.  Oyer,  13  Johns.  124,  the  coun- 
sel proposed  to  modify  the  rule  by  chang- 
ing "or"  into  "and,"  but  the;  court  did 
not  yield  to  the  suggestion.  Therule  was 
repeated  and  followed  in  Martin  v.  Still- 
well,  13  Johns.  275,  where  words  were 
held  actionable  which  charged  the  plaintiff 
with  keeping  a  bawdy-house.  Such  a 
house  is  a  common  nuisance,  and  the 
person  keeping  it  may  be  punished  by  in- 
dictment. In  Gibbs  v.  Dewey,  5  Cow.  503, 
the  charge  was  that  the  plaintiff  had 
handed  papers  to  a  juror  to  influence  or 
bribe  the  jury,  and  the  words  were  held 
actionable.  In  Alexander  v.  Alexandei-,  9 
Wend.  141,  the  charge  was  that  the  plain- 
tiff had  forged  the  defendant's  name  to  a 
petition  to  the  legislature;  and,  although 
the  imputed  offense  was  only  a  misde- 
meanor, and  not  a  felonious  forgery,  the 
words  were  held  actionable.  In  all  of 
these  cases  the  court  went  upon  the 
ground  that  the  words  imputed  "a  crime 
involving  moral  turpitude,"  and  for 
which  the  offender  might  be  proceeded 
against  by  indictment. 

Removing  a  landmark  seems  not  to 
have  been  an  offense  at  the  common  law, 
nor  was  it  niade  so  by  statute  until  1830, 
when  it  was  enacted  that  "every  person 
who  shall  willfully  or  maliciously  remove 
any  monuments  of  stone,  wood,  or  other 
durable  material,  erected  for  the  purpose 
of  designating  the  corner  or  any  othpr 
point  in  the  boundary  of  any  lot  or  tract 
of  land,  shall,  upon  conviction,  be  ad- 
judged guilty  of  a  misdemeanor."  The 
punishment  is  fineandimprisonmentin  the 
county  jail.  2  Rev.  St.  pp.  695,  697,  §§  82,  40. 
And,  as  in  most  other  cases  of  crime,  tne 
prosecuticjn  is  by  indictment.  The  charge 
which  has  been  made  against  the  plaintiff, 
if  true,  will  subject  him  to  punishment  by 
indictment;  and  the  next  inquiry  is 
whether  the  imputed  crime  is  one  "involv- 
ing moral  turpitu<le. " 

Removing  landmarks  was  forbidden 
among  the  Jews,  and  a  curse  was  de- 
nounced upon  the  offender.  Deut.  xix.  14, 
and  xxvii.  17;  Jott,  xxiv.  2;  Prov.  xxii. 
28,  and  xxiii.  10.  The  learned  and  venera- 
ble Doctor  Scott,  in  his  commentary  upon 
the  first-mentioned  ])assage,  says:  "As 
landmarks  constituted  the  customary 
method  of  distinguishing  landed  property 
in  those  days,  removing  them  would  be  a 
crime   among    the    Israelites    similar    to 


112 


LAW  OF  TORTS. 


forging,  altering,  destroying,  or  caDceliiig 
the  title-deeds  of  estate.s  at  this  day  ;  and 
would  occasion  atrocious  injustice,  and 
make  way  for  dispute  and  lawsuits." 
And  in  his  reuiarks  upon  Prov.  xxii.  2S.  he 
calls  the  offenders  "robbers."  Mr.  Henry, 
in  his  counnentary  upon  Deut.  xix.  14, 
says:  "Though  the  landmarks  were  set 
by  the  hancis  of  men,  yet  he  was  a  thief 
and  a  robber,  by  the  law  of  God,  that  re- 
moved them."  And  in  his  comments  up- 
on Job,  xxiv.  2.  he  sa^s  the  offense  is 
equiva^nt  to  that  of  "forging  or  destroy- 
ing deeds."  Doctor  Adam  Clark,  in  his 
commentary  upon  these  passages,  has 
taken  nearly  the  same  view  of  the  ques- 
tion, though  he  has  not  been  quite  so  se- 
vere upon  the  offenders.  But  this  is  a  sub- 
ect  upon  which  it  cannot  be  necessary  to 
nultiply  authorities.  There  is  evidently 
lo  great  difference,  in  a  moral  point  of 
\'iew,  between  altering  the  courses  and 
Jistances  in  a  deed,  for  the  purpose  of  de- 
priving the  owner  of  a  part  of  his  land, 
and  producing  the  same  result  l)y  chang- 
ing the  visible  bounds  of  his  estate.  The 
one  is  a  forgery  on  paper,  and  the  other 
upon  the  face  of  the  earth,  and  when  ei- 
ther of  these  wrongs  is  done  for  the  pur- 
pose of  acquiring  the  property  of  another, 
the  offender  may  justly  be  regarded  as  a 
thief  as  well  as  a  forger.  All  men  must 
agree  that  the  crime  of  removing  land- 
marks is  one  involving  a  high  degree  of 
moral  turpitude;  and,  as  it  is  an  indicta- 
ble offense,  the  case  falls  plainly  within  a 
rule  from  which  we  are  not  at  liberty  to 
depart.  The  demurrer  does  not  point  out 
any  defect  in  the  form  of  the  declaration, 
and  I  am  inclined  to  think  it  sufficient. 
The  defendant  must  have  intended  to 
charge  the  plaintiff  with  a  criminal  offense. 
Miller  V.  Miller,  8  Johns.  74,  77;  Niven  v. 
Munn,  13  Johns.  48;  Goodrich  v.  Wool- 
cott,3  Cow.  231,5  Cow.  714;  Gibbs  v.  Dew- 
ey, Id.  503. 
The  plaintiff  is  entitled  to  judgment. 

CowEN,  J.  I  concur  in  the  views  ex- 
pressed by  Mr.  Justice  Bronson  on  the 
question  raised  by  the  demurrer.  It  was 
contended  on  the  argument  that  the  cases 
in  this  court  which  sanction  an  action  of 
siander  for  words  imputing  a  misdemean- 
or intend  those  misdemeanors  only  to 
which  the  common  or  statutelaw  now, or 
the  common  law  heretofore,  attached  le- 
gal, as  c(jntradistinguished  from  moral, 
in<'am>.  I  understand  those  cases  as  lay- 
ing doAvn  a  rule  of  much  greater  compass, 
— one  which  comprehends  every  indictable 
offense,  which  is  at  the  same  time  infa- 
mous or  disgraceful  in  a  general  sense;  any 
offense  which  detracts  from  the  character 
of  the  offender  as  a  man  of  good  morals. 
I  admit  that  this -principle  covers  a  wide 
field  of  litigation.  Perhaps  it  extends  be- 
yond what  was  once  understood  to  be 
the  true  boundary.  But  the  objection 
that  the  law  will  not  tolerate  the  uncer- 
tainty thus  introduced  is  weakened  by  the 
manner  in  which  the  same  law  deals  with 
actions  like  the  present  in  kindred  cases. 
Fluctuating  as  the  rules  of  conduct  pre- 
scribed by  the  moral  code  may  be,  they  are 
every  day  judicially  recognized  as  the  test 
of  actions  for  printed  slander,  without  the 


technical  limit  required  by  the  rule  now  in 
question.  There  the  offense  imputed  need 
not  be  even  indictable  or  legally  punisha- 
ble in  any  way;  and  a  writing  or  picture 
alluding  to  a  mere  foible  ma^-  be  th& 
subject  of  an  action,  if  intended  to  bring 
the  party  into  contempt  or  ridicule. 

Nelson,  C.  J.,  also  concurred. 
Judgment  for  the  plaintiff. 


(11  Q.  B.  Div.  609.) 

Webb  v.  Beavan. 

(QueeiVs  Bench  Division.     May  30,  1883.) 

Slaxder  —  Words  Imputing   Crime  —  The  En- 
glish Rule. 
Woi'ds  imputing  a  criminal   offense  punishable 
corporally   are   actionable   per  se,  even    though 
such  offense  be  not  punishable  by  indictment. 

Demurrer  to  statement  of  claim. 

Action  for  slander.  The  statement  of 
claim  alleged  that  liefendant  maliciously 
and  falsely  spoke  and  published  of  plain- 
tiff the  words  following:  "1  will  lock  you 
[meaning  the  plaintiff]  up  in  Gloucester 
gaol  next  week.  1  know  enough  to  put 
you  [meaning  the  plaintiff]  there,  [mean- 
ing thereby  that  the  plaintiff  bad  been 
and  was  guilty  of  having  committed  some 
criminal  offense  or  offenses.]"  Plaintiff 
claimed  £500  damages.  Defendant  de- 
murred, on  the  ground  that  the  statement 
of  claim  did  not  allegecircumstances  show- 
ing that  the  defendant  had  spoken  or  pub- 
lished of  the  plaintiff  any  actionable  lan- 
guage, and  that  no  cause  of  action  was 
disclosed.     Plaintiff  joined  in  demurrer. 

W.  H.  S^Hsh,  in  supi)ort  of  the  demurrer. 

To  make  the  words  actionable,  the  in- 
nuendo should  have  alleged  that  they  im- 
puted an  offense  for  which  plaintiff  could 
have  been  indicted.  It  was  not  sufficient 
to  allege  that  they  Imputed  a  criminal  of- 
fense merely.     Odger,  Sland.  &  Lib.  p,  54. 

Hammond  Chambers,  opposed. 

According  to  the  earlier  authorities, 
the  test,  in  ascertaining  whether  words 
were  actionable  per  se.  was  whether  the 
offense  was  punishable  corporally'  or  by 
fine.  It  was  not  necessary  to  allege  that 
the  words  imputed  an  indictable  offense. 
Com.  Dig.  tit.  "Action  on  the  Case  for 
Defamation,"  D  5,  9;  Curtis  v.  Curtis,  10 
Bing.  477. 

Pollock,  B.  I  am  of  opinion  that  the 
demurrer  should  be  overruled-  The  ex- 
pression "indictable offense"  seemstohave 
crept  into  the  text-books,  but  I  think  the 
passages  in  Comyns'  Digest  are  conclusive 
to  show  that  words  which  impute  any 
criminal  offense  are  actionable  per  se.  The 
distinction  seems  a  natural  one,  that 
words  imputing  tliat  the  plaintiff  has  ren- 
dered himself  liable  to  the  mere  infliction 
of  a  fine  are  not  slanderous,  but  that  it  is 
slanderous  to  say  that  he  has  done  some- 
thing for  which  he  can  be  made  to  suffer 
corporally. 

Lopes,  J.  I  am  of  the  same  opinion.  I 
think  it  is  enough  to  allege  that  the 
words  complained  of  impute  a  criminal 
offense.  A  great  number  of  offenses  which 
were  dealt  with   by   indictment  20  years 


SLANDER  AXD  LIBEL. 


113 


ago  are  now  dispospd   of  Kunimarily,  but 
the  effect  cannot  be  to  alter  the  law  with 
respect  to  actions  for  slander. 
Demurrer  overruled. 


(3  Hill,  139.) 
Chase  v.  Whitlock. 
iSupreme  Court  of  New  York.    July  Term,  1842.) 
Slaxdek  —  Words  Imputing   Charge   of  Swin- 
dling. 
To  say  that  a  person  is  a  "swindler"  is  not  ac- 
tionable per  se;  the  word   being   merely  equiva- 
lent to  "cheat,  "  and  not  necessarily  implying  the 
crime  of  obtaining   goods  under  false  pretenses. 

Demurrer  to  declaration. 

Action  for  slander.  The  declaration  al- 
leged, in  its  first  count,  the  speakinj^  by  de- 
fendant of  the  words,  "Chase  is  a  black- 
leg and  swindler;  here  is  Stephen  Potter's 
letter  to  confirm  it ;"  with  the  innuendo 
that  plaintiff  had  been  guilty  of  the  crime 
of  swindling;  and  in  the  second  count  the 
words,  "Chase  is  a  black-legged  swindler; 
his  agent  refused  to  do  his  business;  here 
is  Potter's  letter,  which  I  will  show  you, 
confirming  the  fact;"  with  the  innuendo 
that  plaintiff  had  been  guilty  of  the  crime 
of  swindling;  and  defendant  was  so  under- 
stood b3'  the  people  who  heard  the  words. 
Defendant  demurred  to  the  declaration. 
Plaintiff  joined  in  demurrer. 

N.  Hill,  Jr.,  in  support  of  the  demurrer. 
C.  McVean,  opposed. 

Bronson,  J.  There  is  no  colloquium  of 
obtaining  goods  by  false  pretenses,  nor  is 
there  anything  else  to  show  that  the 
words  were  used  in  any  other  than  their 
oi'dinary  sense.  Swindling  is  not  a  crime 
known  to  our  law.  The  word  "swindler" 
is  an  exotic,  which  came  from  Germanj', 
and  has  but  recentl3'  become  naturalized 
in  our  language.  In  Todd's  Johnson, 
"swindler"  is  defined  to  be  "a  sharper;  a 
cheat;"  and  to  swindle,  "to  cheat;  to  im- 
pose upon  the  credulity  of  mankind,  and 
thereby  to  defraud  the  uuwai^  hy  false 
pretenses  and  fictitious  assumptions." 
Webster  defines  "swindler"  as  '"a  cheat;  a 
rogue;  one  who  defrauds  grossly,  or  one 
who  makes  a  practice  of  defrauding  others 
by  imposition  or  deliberate  artifice."  And 
in  Tomlin's  Law  Dictionary  (Ed.  1S36)  the 
word  is  defined,  "a  cheat;  one  who  lives 
by  cheating.  "  To  call  one  a  "swindler"  is 
about  equivalent  to  saying  he  is  a  "cheat," 
which  has  never  been  held  actionable. 
Either  of  those  charges  may,  under  cer- 
tain circumstances, imi)ly  that  the  accused 
is  guilty  of  the  crime  of  obtaining  goods 
by  false  pretenses.  But  they  do  not  nec- 
essarily mean  so  much.  There  are  many 
ways  in  which  a  man  may  wrong  another 
In  such  a  manner  as  to  earn  tlie  title  of 
"swindler"  or  "cheat, "  without  subject- 
ing himself  to  an  indictment  for  a  crim- 
inal offense.  This  question  has  been  con- 
sidered as  settled  ever  since  the  decision  in 
Savile  v.  .Jardine.  2  H.  Bl.  532.  It  was 
there  held  that  words  charging  the  plain- 
tiff with  being  a  swindler  were  not  action- 
able. Eyrk.C.  J.,said  the  word  was  "only 
equivalent  to  '  cheat ;'  it  cannot  be  carried 
further;  and  that  is  not  actionable."  He 
added,  "'thief  always  implies  felony,  but 
CHASF. — 8 


'cheat'  not  always."  Bui.ler,  J.,  said 
"swindler"  means  no  more  than  "cheat;" 
"when  a  man  is  said  to  be  'swindled,'  it 
means 'tricked 'or 'outwitted.'"  That  case 
was  followed  by  the  supreme  court  of 
Massachusetts  in  Stevenson  v.  Hay  den,  2 
Mass.  406;  and  see  Carter  v.  Andrews,  16 
Pick.  1,  9.  In  Neal  v.  Lewis,  2  Bay,  204, 
the  word  "swindler"  was  applied  to  a 
merchant;  and,  besides,  the  plaintiff  was 
also  charged  with  being  a  thief.  The 
court  had  no  occasion  to  say  whether  the 
first  charge  was  actionable  or  not.  I  am 
not  aware  that  words  charging  the  plain- 
tiff with  being  a  swindler  have  ever  been 
held  actionable,  and,  upon  principle,  I 
think  thej'  are  not.  They  do  not  necessa- 
rily import  a  criminal  offense  involving 
moral  turpitude,  and  punishable  by  in- 
dictment. 
Judgment  for  defendant. 


(14  Johns.  233.) 

Van  Ankin  v.  Westfall. 

(Supreme  Coun  of  New  York.    August  Term, 
1817.) 

1.  Slander — Words  Imputing  Crime  in  Another 

State. 
An  action  may  be  maintained  for  words  charg- 
ing a  crime,  although  the  transaction  referred  to 
took  place  in  a  State  other  than  that  in  which  the 
words  were  spoken  and  the  action  brought,  so 
that  there  could  be  no  prosecution  therefor  in  the 
latter  State. 

2.  Same — Mitigation. 

Evidence  of  the  truth  of  the  charge  for  making 
which  the  action  is  brought  is  not  admissible  in 
mitigation  of  damages. 

Motion  for  new  trial. 
Action  for  slander,  in  speaking  of  plain- 
tiff the   words,  as   alleged   in  the  declara- 
tion  and   proved   on   the  trial,  "He  is   a 
thief,  and   has  stolen   fifty  dollars  in  cash 
from  Jacob  De  Witt. "    These  words  were 
!  spoken  in   the  state   of  New  York,  but  re- 
1  feri-ed  to   a    transaction  which  took  place 
I  in  the  state  of  Pennsylvania,  where  Jacob 
!  De   Witt  resided.     The  defendant   offered 
[evidence,  in   mitigation   of  damages,  that 
j  before  the   time   the  words   were  spoken 
1  plaintiff  was   in  company  with  a   number 
j  of  other   persons,  at  the  house  of  De  Witt, 
[  in    Pennsylvania,    and   that  the    sum   of 
money  had   at  that  time   been  taken  from 
De  Witt,  who  charged   the   persons   who 
had   been   at   his    house  with   taking  it; 
that   those   persons   agreed   to  indemnify 
De  Witt;  and  that  plaintiff,  in  consequence 
of  such   agreement,  paid  his  proportion  of 
the  loss   which   De   Witt   had   sustained ; 
but  this  testimony  was   overruled   by  the 
judge.     Defendant    then    moved  for  a  non- 
suit, on   the  ground   that   the   words   as 
proved  were  not  actionable,  as   they  did 
not    charge    plaintiff   with   the    commis- 
sion  of   any   erime    or  misdemeanor    for 
which    he  was   liable  to   be  indicted    and 
punished   in  the  state  of  New  York.     The 
motion    was  denied.     The  case  was   sub- 
mitted to  the  court  without  argument. 

Per  Curiam.  This  is  an  action  of  slan- 
der, charging  the  defendant  with  saying  of 
the  plaintiff,  "He  is  a  thief,  and  has  stolen 
fifty  dollars  in  cash  from  Jacob  De  ^^'itt.'' 
It   appeared   in  proof  that  Jacob  De  Witt 


114 


LAW  OF  TORTS. 


resided  in  the  state  of  Pennsylvania,  and 
tliat  the  transaction  referred  to  by  the  de- 
fendant tooli  place  in  that  state.  The 
plaintiff's  right  to  sustain  the  action  was 
objected  to,  because  no  crime  was  alleiced 
against  him  for  which  he  could  be  pun- 
ished here.  This  objection  was  properly 
overruled.  Although  the  plaintiff  might 
not  be  amenable  to  our  law,  had  the 
charge  against  him  been  true,  yet,  from 
anything  that  appears,  he  might  have 
been  demanded  as  a  fugitive  from  justice, 
and  have  been  punished,  if  guilty,  in  the 
state  of  Pennsylvania.  But  the  right  of 
the  plaintiff  to  sustain  the  action  does 
not  depend  upon  the  question  whether  he 
was  liable  to  be  prosecuted  and  pun- 
ished for  the  crime  charged  against  hira  ; 
as,  "When  the  statute  of  limitations  has 
run  against  the  criminal  prosecution,  it 
is  still  slander  to  charge  the  party  with 
the  offense;  and  the  party  making  the 
charge  would  have  a  right  to  justify,  and 
show  the  truth  of  his  allegation,  notwith- 
standing the  criminal  pi-osecution  might 
be  barred.  The  evidence  offered  in  mitiga- 
tion of  damages  was  properly  overruled. 
The  testimony  was  to  show  the  truth  of 
the  charge  alleged  against  the  plaintiff, 
and  was  not  admissible,  under  the  general 
Issue,  in  justification  ;  and  it  is  a  well-set- 
tled rule  that  the  truth  of  the  charge  is 
not  admissible  in  mitigation  of  damages. 
The  motion  for  a  new  trial  must  accord- 
ingly be  denied. 
Motion  denied. 


(2  Moody  &  R.  119.) 
Fowler  v.  Dowdxey. 

{Cowt  of  Queen'' s  Bench.    March  2,  1838.) 

Slander  —  Words  Imputing  Crime  aftek  Pun- 
ishment Therefor. 
To  say  that  a  person  is  a  "returned  convict"  is 
actioDable  per  se,  as  imputing  an  offense  punish- 
able by  transportation ;  the  obloquy  remaining, 
although  the  punishment  has  been  suffered. 

At  nisi  prius,  before  Denman,  C.  J. 

Action  for  slander  for  saying  of  plain- 
tiff, "He  is  a  returned  convict."  The  dec- 
laration averred,  as  special  damage,  the 
loss  of  a  customer  to  w'hom  the  words 
were  spoken,  plaintiff  being  a  tradesman  ; 
but  the  proof  of  the  special  damage  failed. 

Crowder  &  Saunders,  for  plaintiff. 

Erie,  for  defendant. 

The  words  were  not  actionable  in  them- 
selves, inasmuch  as  they  imputed  no  pres- 
ent liability  to  punishment;  for,  conced- 
ing that  an  offense  for  which  transporta- 
tion was  the  punishment  was  imputed, 
the  words  imply  that  the  party  had  al- 
ready suffered  that  punishment. 

Denman,  C.  J.  My  opinion  is  that  these 
words  are  actionable,  because  they  impute 
to  the  plaintiff  that  he  has  been  guilty  of 
some  offense  for  which  parties  are  liable 
to  be  transported.  That  is,  I  think,  the 
plain  meaning  of  the  words,  as  set  out  in 
the  declaration.  They  import,  to  be  sure, 
that  the  punishment  has  been  suffered, 
but  still  the  obloquy  remains. 

Verdict  for  plaintiff;  damages,  Is. 


(3  Wend.  5.34.) 
GORHAM    V.  IVES. 

{Supreme  Court  of  New  York.    May  Term,  1829.) 

Slander  —  Words  Imputing  Crime  by  Interro- 
gation. 
An  action  may  be  maintained  for  speaking 
words  imputing  crime,  although  not  in  direct 
and  positive  terms,  but  by  way  of  interrogation 
only,  if,  according  to  the  natural  and  fair  con- 
struction of  the  language  used,  in  connection 
with  the  circumstances,  the  bearers  had  a  right 
to  believe  that  defendant  intended  to  charge 
plaintiff  with  the  commission  of  a  criminal  offense. 

Demurrer  to  declaration. 

Action  for  slander.  The  declaration  al- 
leged that  defendant  had  become  pos- 
sessed of  a  promissory  note  dated  August 
27,  1825,  made  by  William  Erwin  and 
James  Erwin,  payable  to  William  McMur- 
ray  or  order,  for  $51.84,  payable  four 
months  after  date,  "with  interest  from 
date,"  (the  words  quoted  being  interlined 
in  the  note,)  which  had  been  indorsed  to 
plaintiff,  who  had  collected  the  amount. 
The  second  count  of  the  declaration  al- 
leged that  defendant,  in  a  discourse  with 
one  Parinelee  and  others,  after  showing 
the  note,  spoke  these  words:  "The  note 
is  in  Edward  A.  Cook's  handwriting,  and 
the  words  at  the  end  of  the  note,  'with 
interest  from  date,'  are  in  a  different 
handvvriting.  The  note  has  only  passed 
through  the  hands  of  Cook,  McMurray, 
and  Gorham,  and  thpse  words  must  have 
been  put  there  by  one  of  them.  The  sign- 
ers of  the  note  say  the  words  were  put 
there  since  they  signed,  and  I  have  shown 
the  note  to  a  number  of  persons, — Reid 
and  others ;  "  and  then,  addressing  Parme- 
lee,  proceeded :  "Do  not  you  think  it  is 
Gorham's  handwriting?"  and  that.  Par- 
melee  having  asked  defendant  to  explain 
himself  and  what  he  meant,  defendant  re- 
plied, "Time  will  show.  "  The  third  count 
of  the  declaration  alleged  that  defendant,, 
in  a  certain  other  discourse,  after  showing 
the  note  to  sundry  persons,  spoke  these 
words,  "This  note  has  been  altered  after 
it  was  signed;"  and,  on  being  asked  by 
one  of  the  by-standers  if  he  knew  by 
whom  it  had  been  done,  he  replied,  "I  do 
not,  but  I  have  shown  it  to  some  persons, 
and  they  said  that  the  addition  at  the  end 
of  the  note  was  in  Shubael  Gorham's 
handwriting;"  and  added  that  "one  of 
the  signers  would  swear  that  the  note 
that  he  signeii  was  not  written  pa^-able 
with  interest,  for  he  refused  to  sign  such 
an  one;"  and,  on  being  asked  by  one  of 
the  persons  present "  if  Gorham  would  com- 
mit forgery,"  defendant,  holding  out  the 
note,  replied,  "You  can  see  for  yourselves.  "^ 
Defendant  demurred  to  the  second  and 
third  counts  of  the  declaration. 

H.  P.  Hunt,  in  support  of  the  demurrer. 
J.  L.  Viele,  opposed. 

Sutherland,  J.  I  am  of  opinion  that 
both  counts  are  good.  The  words  used 
by  the  defendant  necessarily  imply,  when 
taken  in  connection  with  the  colloquium^ 
that  the  words  "  with  interest  from  date" 
had  been  forged  and  added  to  the  note  aft- 
er its  signature;  and  the  inquiry  by  the 
defendant  intiie  second  count  of  Parmelee, 
"if  he  did  not  think  the  addition  was  ia 
Gorham's   handwriting,"  and  his  declara- 


SLANDER  AND  LIBEL. 


1J5 


tion  in  the  third  count  that  he  had  showed 
it  to  some  persons  who  said  "  the  addition 
was  in  Shnbael  Gorham's  handwriting," 
leave  no  reasonable  doubt  that  it  was 
the  intention  of  tlie  defendant  to  impress 
upon  the  minds  of  the  persons  whom  he 
addressed  the  belief  that  the  forgerj' had 
been  committed  by  Gorham.  The  charge 
need  not  be  couched  in  direct  and  positive 
terms.  The  imputation  of  crime  may  be 
as  effectually  made  by  way  of  interrojja- 
tion  as  by  an  affirmative  allegation.  The 
only  inquiry  is  whether,  according  to  the 
natural  and  fair  construction  of  the  lan- 
guage used  by  the  defendant,  (taken  in 
connection  with  the  preliminary  circum- 
stances stated  by  way  of  colloquium,)  the 
persons  in  whose  presence  and  hearing  the 
language  was  used  had  a  right  to  believe 
that  it  was  the  intention  of  the  defendant 
to  charge  tlie  plaintiff  with  the  commis- 
sion of  a  criminal  offense.  Such  was  obvi- 
ously the  intention  of  the  defendant  in 
this  case. 

Judgment  for  plaintiff  on  demurrer, 
with  leave  to  defendant  to  plead  ou  paj-- 
ment  of  costs. 


tions  of  the  preceding  day,  and  that  the 
terms  "highwaymen,  robbers,  and  mur- 
derers" were  used  in  reference  to  the  treat- 
ment of  Bird  in  withholding  the  bass-viol, 
and  in  wounding  him.  The  judge  was  of 
opinion  that  the  words  being  spoken  ia 
relation  to  the  transactions  of  the  preced- 
ing day,  and  so  understood,  were  thereby 
explained,  and  on  that  account  not  ac- 
tionable. The  jury  found  a  verdict  for 
plaintiff  for  $50  damages  and  6  cents 
costs.  Defendant  moved  for  a  new  trial, 
on  the  ground  that  the  verdict  was  con- 
trary to  law  and  the  evidence. 

Van  Vechteu,  for  the  motion.  Wood- 
worth,  opposed. 

Per  Curiam.  We  agree  in  opinion  with 
the  judge  at  the  trial.  The  words  spoken 
by  the  defendant  a\  ere  clearly  understood 
to  apply  to  the  transactions  of  the  pre- 
ceding day,  and  these  were  known  not  to 
amount  to  the  charge  which  the  words 
would  otherwise  import. i  Let  the  verdict, 
therefore,  be  set  aside;  and,  there  being  no 
question  upon  the  evidence,  the  finding 
of  the  jury  must  be  considered  as  contrary 
to  law,  and  it  is  therefore  ordered  that 
the  costs  abide  the  event  of  the  suit. 

Rule  granted. 

^  Note  bt  Editor  of  Second  Editiox  of  John- 
son's Cases.  In  Cristie  v.  Cowell,  Peake,  4,  the 
words  proved  were,  "He  is  a  thief,  for  he  has 
stolen  my  beer. "  It  appeared  in  evidence  that 
the  defendant  was  a  brewer,  and  that  the  plain- 
tiff had  lived  with  him  as  a  servant;  in  the 
course  of  which  service  he  had  sold  beer  to  dif- 
ferent customers  of  the  defendant,  and  received 
monej'^  for  the  same  which  he  had  not  duly  ac- 
counted for.  Lord  Kenton  directed  the  jury  to 
consider  whether  these  words  were  spoken  in  ref- 
erence to  the  money  received  and  unaccounted 
for  by  the  plaintiff,  or  whether  the  defendant 
meant  that  the  plaintiff  had  actually  stolen  beer; 
for,  if  they  referred  to  the  money  not  accounted 
for,  that,  being  a  mere  breach  of  contract,  so  far 
explained  the  vvord  "thief"  as  to  make  it  not  ac- 
tionable. Thus,  if  a  man  says  to  another,  "You 
are  a  thief,  for  you  stole  my  tree, "  it  is  not  ac- 
tionable, (Minors  v.  Leeford,  Cro.  Jac.  114;  Bull. 
N.  P.  p.  5;)  for  it  shows  he  had  a  trespass,  and  not 
a  felony,  in  his  contemplation.  Words  may  import 
a  charge  of  felony,  yet,  if  it  appear  from  the  sub- 
ject-matter that  the  fact  charged  could  not  have 
happened,  an  action  cannot  be  maintained.  Jack- 
son V.  Adams,  3  Bing.  N.  C.  402,  3  Scott,  599;  Snag 
V.  Gee,  4 Coke,  16a,-  Staph.  N.  P.  2352,  2253.  "Words 
apparently  actionable  may  be  explained  by  cir- 
cumstances to  have  been  intended  and  understood 
in  an  innocent  sense.  Thus,  though  the  defend- 
ant should  say,  'Thou  art  a  mui'derer, '  the  words 
would  not  be  actionable,  if  the  defendant  could 
make  it  appear  that  he  was  conversing  with  the 
plaintiff  concerning  unlawful  hunting,  when  the 
plaintiff  confessed  that  he  killed  several  hares 
with  certain  engines,  upon  which  the  defendant 
said,  '  Thou  art  a  murderer;'  meaning  a  murderer 
of  hares  so  killed.  Lord  Cromwell's  Case,  4  Coke, 
13.  But  the  words,  '  I  think  the  business  ought  to 
have  the  most  rigid  inquiry,  for  he  murdered  his 
first  wife, — that  is,  he  administered  improperly 
medicines  to  her  for  a  certain  complaint,  which 
was  the  cause  of  her  death,' — were  held  to  be  ac- 
tionable, as  importing,  at  least,  a  charge  of  man- 
slaughter; and,  though  the  words  were  doubtful, 
the  doubt  would  be  cured  by  the  finding  of  a  jury 
that  they  were  meant  in  that  sense.  Ford  v.  Prim- 
rose, 5  Dowl.  &  R.  2S8. "  1  Starkie,  Sland.  &  L. 
(Wend.  Ed.)  99  et  seq. 

(See,  also,  Pollard  v.  Lyon,  91  U.  S.  225;  Thomas  v,  Blasdale,  147  Mass.  43S,  18  N.  E.  Rep.  214; 
Gtearv  v.  Bennetc,  53  Wis.  444,  10  N.  W.  Rep.  603;  Pollock  v.  Hastings.  >:S  Ind.  248;  Anon.,  60  N.  Y. 
262;  klumph  v.  Dunn,  66  Pa.  St.  141 ;  Hayes  v.  Ball,  73  N.  Y.  418;  Simmons  v.  Mitchell,  L.  R.  6  App. 
Cas.  156.) 


(1  Johns.  Cas.  279.) 

Van  Rensselaer  v.  Dole. 

(Supreme  Court  of  New  York.    April  Term,  1800. ) 

Slander — Words  Imputing  Crime  on  Facts  not 
Constituting  the  Offense. 
To  say  that  certain  persons  are  "highwaymen, 
robbers,  and  murderei's,  "the words  being  spoken 
and  understood  with  reference  to  transactions 
which  were  known  not  to  amount  to  the  charge 
the  words  import,  is  not  actionable. 

Motion  for  new  trial. 

Action  for  slander.  The  declaration 
charged  defendant  with  speaking  of  plain- 
tiff and  others  the  folio  wing  words:  "John 
Keating  is  as  damned  a  rascal  as  ever 
lived,  and  all  who  joined  his  party  and 
the  procession  on  the  4th  day  of  July 
[meaning  the  said  John  Van  Rensselaer 
and  the  party  and  procession  in  which 
said  .lohn  Keating  acted  as  captain  on 
said  4th  day  of  July]  are  a  set  of  black- 
hearted highwaymen,  robbers,  and  mur- 
derers." in  other  counts,  the  words  were 
differently  charged,  with  some  additional 
expressions,  but  in  substance  the  same. 
Defendant  pleaded  the  general  issue.  At 
the  trial  the  words  charged  were  proved 
to  have  been  spoken  by  defendant.  On 
behalf  of  defendant  it  was  shown  that,  on 
the  daj-  preceding  the  speaking  of  the 
words,  there  had  been  a  public  procession 
to  a  cliurch  in  the  place  where  the  parties 
resided;  that  Keating  commanded  an 
artillery  company,  which  formed  part  of 
the  procession,  attended  with  music;  that 
one  Bird  claimed  one  of  the  instruments  of 
music,  a  bass-viol,  and  went  to  the 
church  to  demand  ortakeit,  but  it  was  re- 
fused and  retained  by  force;  that  upon 
this  an  affray  ensued,  in  which  Bird  re- 
ceived a  dangerous  wound.  There  was 
evidence  that  the  conversation  in  whicli 
these  words  were  spoken  was  understood 
by  the  witnesses  to  relate  to  the  transac- 


lie 


LAW  OF  TOUTS. 


2.  Charge  of  certain  contagious  diseases. 


the  disease  In  fact,  it  would  be  a  sufficient 
justification,  and  the  evidence  offered  by 
plaintiff  was  immaterial.  A  verdict  was 
taken  for  defendants.  Plaintiff  alleged 
exceptions. 

B.  F.  ButJer,  for  plaintiff.  J.  G.  Abbott 
and  G.  A.  Somerby,  for  defendants. 

Metcalf,  J.  The  charge  against  the 
plaintiff  of  his  having  the  venereal  disease 
is  held  to  be  actionable  for  the  same  rea- 
son that  a  charge  of  his  having  the  lepro- 
sy or  the  plague  would  be;  not  because  the 
charge  imputes  any  legal  or  moral  offense, 
but  solely  because  it  tends  to  exclude 
him  from  society  as  a  person  having 
a  disgusting  and  contagious  disease 
Hence  it  is  that  to  charge  one  with  hav- 
ing had  the  disease  is  not  actionable;  such 
charge  not  tending  to  exclude  him  from 
society  as  a  person  with  whom  it  is  unsafe 
to  associate.  March,  Sland.  (Ed.  1674,) 
77,78;  Crittal  v.  Horner,  Hob.  219;  Blood- 
worth  V.  Gray,  8  Scott,  N.  R.  11;  Cars- 
lake  V.  Mapledoram,  2  Term  R.  473;  3  Bl. 
Comra.  123,  note  by  Christian;  2  Dane, 
Abr.  56S. 

The  jury  having  found  that  the  plaintiff, 
when  the  charge  against  him  was  made, 
had  the  venereal  disease,  there  remains 
no  ground  on  which  this  action  can  be 
maintained;  for  the  truth  of  the  charge 
is  a  justification.  Doubtless  such  acharge 
as  the  plaintiff  complains  of  maybe  ac- 
companied with  words  that  necessarily  im- 
pute adultery  or  fornication,  either  of 
which  is  an  offense  punishable  b^'  the 
laws  of  this  commonwealth.  In  such  a 
case  the  charge  would  be  actionable. 
But,  in  the  present  case,  the  words  which 
were  added  to  the  charge  of  the  plaintiff's 
having  the  disease  did  not  impute  any 
punishable  offense.  They  only  asserted 
that  the  plaintiff,  while  a  widower,  was 
diseased,  and,  after  his  marriage  to  his 
present  wife,  communicated  the  disease  to 
her.  The  allegation  that  he  was  "the 
guiltj' one"  means  that  the  disease  was 
communicated  by  him  to  her,  and  not  by 
her  to  him.  It  does  not  import  that  he 
contracted  the  disease  guiltily  ;  that  is,  by 
committing  adultery  or  fornication.  Nor 
does  the  plaintiff's  declaration  aver  that 
any  punishable  offense  is  imputed  to  him 
by  the  words  spoken. 

Judgment  on  the  verdict. 

(See,  also,  Williams  v.  Holdredge,  22  Barb.  396;  Hewit  v.  Mason,  24  How.  Pr.  366;  Kaucher  v. 
Blinn,  29  Ohio  St.  62.) 


(7  Gray,  181.) 
GOLDERMAX   V.  STEARNS   Ct   UX. 

(Supreme  Judicial  Court  of  Massadiusetta. 
Oct.  Term,  1856.) 

1.  Slander  —  Words  Imputing  Contagious  Dis- 

ease. 
To  say  of  a  man  that  he  has  the  venereal  dis- 
ease is  actionable,  as  tending  to  exclude  him 
from  societj-;  but  if,  when  the  charge  was  made, 
he  had  such  disease,  the  truth  of  the  charge  is  a 
justification. 

2.  Same. 

Defendant  asserted  that  plaintiff  had  the  vene- 
real disease,  and,  having  married,  communicated 
it  to  his  wile,  and  that  he  was  "the  guilty  one.  " 
Held,  that  no  action  could  be  maintained  there- 
for if  plaintiff  in  fact  had  such  disease;  and  that 
evidence  that  it  was  communicated  to  him  by  his 
wife,  whom  he  had  married  not  knowing  that 
she  had  the  disease,  was  immaterial. 

3.  Same— Implied  Charge  of  Crime. 

Such  words  are  not  actionable  as  imputing  to 
plaintiff  a  punishable  offense;  they  do  not  neces- 
sarily import  the  commission  of  adultery  or  for- 
nication. 

On  exceptions. 

Action  by  Caspar  Golderman  against 
Charles  Stearns  and  wife  for  slander.  The 
declaration  alleged  that  the  female  defend- 
ant accused  plaintiff  of  "having  had  a 
loathsome  venereal  disease,  and  with  that 
disease  upon  him  having  contracted  mar- 
riage, and  given  the  disease  to  his  wife, 
by  words  spoken  of  the  plaintiff,  who 
was  then  and  there  lately  married  to  his 
wife,  substantially  as  follows:  'Golder- 
man has  the  venereal  disease.  It  is  an  old 
affair,  and  being  married  has  brought  it 
on  again.  He  is  the  guilty  one.  He  has 
given  it  to  his  wife.'"  At  the  trial  plain- 
tiff introduced  evidence  tending  to  prove 
the  words  and  colloquium  set  forth,  and 
rested  his  case.  Defendants  then  intro- 
duced evidence  that,  immediately  after 
his  marriage,  plaintiff  had  such  disease, 
and  claimed  that  this  made  out  a  justifi- 
cation. Plaintiff  then  offered  to  prove 
tJiat,  being  a  widower,  and  the  father  of 
adult  children,  he  married  a  woman  who 
had  the  disease,  of  which  fact  he  was  then 
ignorant,  and,  immediately  after  the  mar- 
riage, took  the  disease  from  his  wife,  and 
thereupon  sent  her  away  from  his  house, 
and  had  not  lived  with  her  since.  Thejudge 
ruled  that  if  the  jury  were  satisfied  that 
plaintiff,  at  the  time  of  the  speaking  of 
the  words  setforth  in  thedeclaration,  had 


3.  Charge  affecting  a  man  in  his  oflB.ce,  profession,  trade,  employ- 
ment, etc. 


(7  TTend.  204.) 

Forward  v.  Adams. 

(Supreme  Court  of  New  York.    May,  1831.) 

1.  Slander — Words  Affecting  Plaintiff  in  His 
Office  or  Vocation. 
Words  which  are  not  actionable  in  themselves, 
but  could  be  so  only  in  consequence  of  the  special 
character  of  the  person  of  whom  they  are  spoken, 
are  not   actionable  when   spoken  after  such  per- 


son has  ceased  to  sustain  that  special  character; 
the  ground  of  action  is  that  the  party  is  disgraced 
or  injured  in  his  profession  or  trade,  or  exposed 
to  the  hazard  of  losing  his  office,  in  consequence 
of  the  slanderous  words,  not  that  his  general  rep- 
utation is  affected  by  them. 

2.  Same  —  Charge    Affecting   Public   Officer 
after  Termination  of  His  Office. 
To  saj-,  of  a  person    formerly  appointed    to  ne- 
gotiate  a  treaty   with   Indians,  that  he    bribed 


SLANDER  AND  LIBEL. 


117 


them  to  sign  the  treaty,  not  being  actionable  ex- 
cept as  affecting  him  in  such  office,  is  not  action- 
able where  the  office  had  expired  before  the 
words  were  spoken. 

Demurrer  to  declaration. 

Action  for  slander.  The  declaration 
set  forth  by  way  of  inducement  that,  on 
Maj'  23,  1826,  plaintiff  was  appointed  by 
the  president  of  the  United  States  a  com- 
missioner on  the  part  and  behalf  of  the 
United  States,  as  the  general  protector  of 
Indian  tribes,  to  attend  a  treaty' to  be  held 
between  the  proprietors  of  the  pre-emp- 
tion right  to  certain  lands  held  by  Indians 
in  the  state  of  New  York,  and  those  In- 
dians, under  the  sanction  of  the  govern- 
ment of  the  United  States,  for  the  extin- 
guishment of  the  riglit  of  the  Indians  to 
the  occupancy'  of  such  lands,  with  instruc- 
tions to  exercise  a  sound  discretion  in  the 
business,  and,  if  satisfied  of  the  fairness  of 
the  propositions  of  the  proprietors,  to  af- 
ford them  such  co-operation  in  effecting  the 
object  of  the  treaty  as  he  might  judge 
proper;  and  that,  having  accepted  the  ap- 
pointment, plaintiff,  on  August  31,  1826, 
attended  a  treaty  at  Buffalo,  and,  being 
satisfied  of  the  fairness  of  the  propositions 
of  the  proprietors,  he  sanctioned,  ap- 
proved, and  recommended  a  treaty  there 
made  between  the  Indians  and  proprietors 
for  the  extinguishment  of  the  right  of  the 
Indians  to  the  occupancy  of  the  lands,  the 
subject  of  the  treaty;  and  it  charged  that 
defendant,  in  a  discourse  had  on  June  1, 
1828,  of  and  concerning  the  plain  tiff,  and  of 
and  concerning  his  conduct  as  such  commis- 
sioner, and  in  relation  to  the  treaty  which 
had  been  concluded,  uttered  the  following 
words,  alleged  to  be  false,  scandalous,  and 
defamatory,  viz. :  "He  bribed  some  of  the 
Indians  to  sign  the  treatj'.  He  hired  some 
of  the  Indians  to  sign  the  treaty.  He 
was  guilty  of  hiring  or  bribing  some  of 
the  Indians  to  sign  the  treaty.  He  was 
dishonest  with  the  Indians."  Innuendo, 
that  plaintiff  had  misdemeaned  himself  in 
his  appointment,  had  perverted  his  office, 
and  corruptly  exercised  his  influence  with 
the  Indians  by  means  of  bribery  and  cor- 
ruption. Defendant  demurred  to  the  dec- 
laration. 

>S.  A.  Foot,  for  the  demurrer.  J.L.  Wen- 
dell, opposed. 

SuTHrcRLAXD,  J.  The  demurrer  is  well 
taken.  It  is  conceded  that  the  words  do 
not  impute  an  indictable  offense.  If  true, 
the  plaintiff  would  not  be  subjected  by 
them  to  a  criminal  prosecution.  The  of- 
fense, if  any,  was  an  offense  against  the 
United  States,  and  it  is  not  siiown  that 
they  have  an^'  statute  applicable  to  the 
case;  and  the  better  opinion  seems  to  be 
that  the  court  of  the  United  States  have 
no  general  common-law  criminal  jurisdic- 
tion. U.  S.  V.  Hudson,  7  Cranch,  32;  U.  S. 
V.  Worrall,  2  Dall.  384;  opinion  of  Chief 
Justice  Marshall  in  Burr's  Trial ;  U.S.  v. 
Coolidge,  1  Gall.  4S8,  1  Wheat.  415;  Disser- 
tation on  the  Nature  and  Extent  of  the 
Jurisdiction  of  the  Courts  of  the  United 
States,  by  Mr.  Dn  Ponceau ;  1  Kent, 
Comm.  311,  320;  Serg.  Const.  Law,  262,  265. 

The  action  is  put  distinctly  on  theground 
that  the  words  were  spoken  of  the  plain- 
tiff as  a  public  officer,  and  tended  to  his  in- 


jury and  disparagement  in  that  character. 
The  fatal  objection  to  the  action  on  this 
ground  is  that  it  appears  on  the  face  of 
the  declaration  that  the  plaintiff  was  not 
in  office  when  the  words  were  spoken,  but 
that  the  office  itself,  being  a  special  trust, 
and  temporary  in  its  nature,  had  expired 
about  two  years  before  the  uttering  of  the 
slanderous  words.  In  Walden  v.  Mitchell, 
2  Vent.  265,  the  following  dictum  is  imput- 
ed to  the  chief  justice:  "That  where  a 
man  had  been  in  an  office  of  trust,  to  say 
that  he  behaved  himself  corruptly  in  it,  as 
it  imported  great  scandal, so  it  might  pre- 
vent his  coming  into  that  or  the  like  office 
again,  and  therefore  was  actionable." 
The  observation  was  not  called  for  by  the 
case,  as  the  aetion  was  sustained  on  an 
entirely  different  ground.  Also  in  Pridham 
V.  Tucker,  Yel.  153,  it  appears  to  have  been 
held  that  an  action  could  be  maintained 
for  the  words,  "  When  thou  wert  a  justice 
thou  wert  a  bribing  justice,"  for  the  same 
reason  assigned  in  Ventris.  Chief  Justice 
De  Grey,  in  delivering  the  opinion  of  the 
court  in  Onslow  v.  Home,  3  Wils.  188. 
said  :  "  I  know  of  no  case  where  aa  action 
for  words  was  ever  grounded  upon  eventu- 
al damages  which  may  possibly  happen  to 
a  man  in  a  future  situation,  notwitiistand- 
ing  what  the  chief  justice  throws  out  in  2 
Vent.  266.  I  think  the  chief  justice  went 
too  far.  "  The  authority  of  Chief  Justice 
De  Grey  effectually  disposes  of  these 
cases.  But  he  is  also  supported  hj  many 
analogous  decisions.  Thus,  where  an  ac- 
tion is  brought  for  words  (not  actionable 
in  themselves)  spoken  of  a  person  in  a  par- 
ticular calling  or  profession  or  employ- 
ment, it  must  appear  that  he  followed 
such  profession  or  employment  when  the 
words  were  spoken.  In  Gibs  v.  Px-ice, 
Style,  231,  the  judgment  was  arrested  be- 
cause it  was  not  averred  that  the  plaintiff 
was  a  barrister  at  the  time  of  the  bringing 
of  his  action,  the  words  having  been 
spoken  of  him  in  his  professional  charac- 
ter. And  in  Gary's  Case,  Poph.  207,  the 
words  were  spoken  of  the  plaintiff  as  a 
counselor  at  law;  and  it  was  said  by 
Jones,  J.,  that  it  was  not  sufficient  for  the 
plaintiff  to  aver  that  he  was  eruditus  in 
lege,  but  he  ought  to  say  that  he  was 
homo  conciliarius.  He  must  show  that 
he  sustained  the  special  character  in  rela- 
tion to  which  the  words  were  uttered.  In 
King  V.  Lake,  2  Vent.  28,  (which  was  also 
a  case  of  words  spoken  of  the  plaintiff  as  a 
lawyer,)  it  was  expressly  stated  that  the 
plaintiff  was  bred  up  to  the  law,  and  prac- 
ticed it,  and  had  many  persons  for  his  cli- 
ents, and  thereby'  got  money  and  main- 
tained his  family.  Kerle  v.  Osgood,!  Vent. 
50.  Upon  tlie  strength  of  these  and  other 
cases,  it  is  laid  down  in  treatises  upon 
this  subject  that,  where  an  action  ia 
brought  for  words  spoken  of  a  barrister 
or  physician,  it  must  appear  that  he 
practiced  as  such  at  the  time  the  words 
were  spoken ;  for  otherwise  the  words 
could  not  have  affected  him  professional- 
ly. Starkie,Sland.  &.  L.  105  ;  Bac.  Abr.  tit. 
"Slander,"  212-215.  So,  if  an  action  be 
brought  for  publishing  words  of  a  trades- 
man, concerning  his  trade,  it  must  be 
averred  that  at  the  time  of  [)ublishing 
them  he  was  in  trade;  for,  if  he  were  not 


118 


LAW  OF  TORTS. 


at  that  time  in  trade,  his  credit  could 
not  be  hurt  by  the  words.  Collins  v. 
Malin,  Cro.  Car.  8S2;  Jordan  v.  Lyster, 
Cro.  Eliz.  273;  Tuthill  v.  Milton,  Cro.  Jac. 
222.  These  cases  all  admit  this  prin- 
ciple, for,  although  the  court  in  some  of 
them  refused  to  arrest  the  judgment,  it 
was  upon  the  ground  that,  after  verdict, 
they  would  intend,  from  the  general  aver- 
ment, (that  the  plaintiff  had,  for  a  long 
time  preceding  the  day  on  which  the 
words  were  laid,  exorcised  the  trade,) 
that  he  continued  to  exercise  it  on  the 
day  the  words  were  published. 

The  ground  of  action  in  these  cases  is 
that  the  party  is  disgraced  or  injured  in 
his  profession  or  trade,  or  exposed  to  the 
hazard  of  losing  his  office  in  consequence 
of  the  slanderous  words,  not  that  his  gen- 
eral reputation  and  standing  in  the  com- 
munity are  affected  by  them.  It  will  be 
recollected  that  the  words  spoken,  in  this 
class  of  cases,  are  not  actionable  of  them- 
selves, but  that  they  become  so  in  conse- 
quence of  the  special  character  of  the  party 
of  whom  they  are  spoken.  The  fact  of  his 
sustaining  that  special  ciiaracter,  there- 
fore, lies  at  the  very  foundation  of  the  ac- 
tion. On  this  ground,  therefore,  the  dec- 
laration is  bad. 

It  may  be  questionable,  also,  whether 
the  words  necessarily  convey  a  charge  of 
official  misconduct.  The  terms  "bribing" 
and  "  hiring  "  the  Indians  to  sign  tlie  treaty 
are  evidently  synonymous,  and  were  in- 
tended to  convey  the  same  idea;  and,  if 
the  treaty  which  they  were  by  these  means 
induced  to  sign  was  a  fair  and  advanta- 
geous one  for  them,  it  may  not  have  been 
a  violation  of  the  official  duty  of  the 
plaintiff  (when  the  peculiar  character  of 
the  Indians  is  considered)  to  have  resorted 
to  presents  or  pe(tuniary  inducements  to 
procure  their  assent  to  It.  It  is  unneces- 
sary, however,  to  express  any  ouinion  up- 
on tliis  point. 

Judgment  for  defendant. 


(1  Sandf.  155.) 

Ireland  v.  McGarvish. 

(Superior  Court  of  New  York  City,  General 
Term.    Dec.  1847.) 

Slander  —  Words  Affecting  Plaintiff  in  His 
Business. 
To  saj'  of  the  keeper  of  a  house  of  public  enter- 
tainment, "He  is  a  dangerous  man;"  "He  is  a 
desperate  man;"  "I  am  afraid  to  go  in  his  house 
alone;"  "I  am  afraid  of  my  life," — is  not  action- 
able, as  affecting  his  business,  since  the  words 
do  not  relate  to  his  business  character,  or  charge 
any  delinquency  in  his  business. 

Motion  to  set  aside  nonsuit  and  for  a 
new  trial. 

Action  of  slander.  The  declaration 
alleged  that  plaintiff  was  the  proprie- 
tor of  a  certain  garden  and  house  of 
refi'eshment  and  entertainment,  by  keep- 
ing wliich  he  obtained  large  gains  and 
profits;  and  that  defendant  spoke  and 
uttered  to  one  Taggart  and  to  others  the 
following  defamatory  words  of  and  con- 
cerning the  plaintiff,  and  of  and  concern- 
ing his  trade  and  business:  "I  [the  said 
defendant  meaning]  am  afraid  to  go  to  his 
[the  said  plaintiff's  meaning]  house  alone, 


[referring  to  the  said  plaintiff,  and  there- 
by and  then  and  there  meaning  that  the 
said  plaintiff  was  a  dangerous  man,  whom 
the  said  defendant  had  good  cause  to  be 
afraid  of,  and  that  the  said  defendant,  for 
the  preservation  of  his  life,  had  to  have 
some  one  to  protect  him.]  "  "I  [the  said 
defendant  meaning]  am  afraid  of  my  life, 
[thereby  and  then  and  there  meaning  that 
the  said  plaintiff  was  seeking  his,  the  said 
defendant's,  life.]"  "He  [the  said  plain- 
tiff meaning]  is  a  dangerous  man,  [there- 
by and  then  and  there  meaning  that  the 
said  plaintiff  was  a  dangerous  and  dis- 
reputable man,  whom  he,  the  said  Tag- 
gart, and  others  should  shun  as  unwoi'thy 
of  his  esteem,  and  that  the  said  plaintiff 
was  a  man  whom  it  would  be  dangerous 
to  trust.]  "  "  He  [the  said  plaintiff  mean- 
ing] is  a  desperate  man,  [thereby  and  t^ien 
meaning  as  last  aforesaid,]  "  "Look  out, 
for  it  is  more  than  likely  he  [the  said 
plaintiff  meaning]  will  take  advantage  of 
you,  [thereby  and  then  and  there  meaning 
that  the  said  plaintiff  was  a  dishonest  and 
disreputable  person,  who  would  take  ad- 
vantage of  those  who  should  confide  in 
him,  or  repose  confidence  in  him,  the  said 
plaintiff,  and  that  the  said  plaintiff  was 
one  who  should  be  treated  and  looked  up- 
on as  a  disreputable  man,  likely,  if  an  op- 
portunity presented,  to  cheat  and  de- 
fraud.]" "He  [the  said  plaintiff  meaning] 
is  a  thief,  [thereby  and  then  and  there 
meaning  that  the  said  plaintiff  had  been 
guilty  of  a  crime  of  stealing,  which  ren- 
dered him  amenable  to  the  laws  of  the 
state,  as  and  for  a  felony.]  "  At  the  trial, 
in  October,  1846,  a  witness  for  plaintiff, 
one  Eobert  Sears,  testified  that  plaintiff 
for  six  years  past  owned  and  kept  the 
Washington  House  and  gardens  at  Ho- 
boken;  that  in  the  summer  of  1845,  about 
the  month  of  June,  defendant  called  at  a 
public  house  in  Elm  street,  in  the  city  of 
New  York,  where  witness  was  emploj^ed  as 
a  bar-keeper,  and  commenced  a  conversa- 
tion about  plaintiff.  He  said  he  had  left 
plaintiff's  emplo.vment.  He  said  :  "He  is 
a  dangerous  man."  "He  is  a  desperate 
man."  "lam  afraid  to  goto  his  house 
alone."  "I  am  afraid  of  my  life. "  Wit- 
ness stated  that,  previous  to  this,  he  was 
in  the  habit  of  going  to  plaintiff's  house 
at  Hol)oken,  with  his  friends,  for  refresh- 
ments and  entertainment,  and  had  been  in 
such  habit  for  about  four  years.  After 
this  conversation  with  defendant  the  wit- 
ness did  not  go  to  plaintiff's  for  some 
time,  and  made  up  his  mind  that  he  would 
not  go  again  until  he  had  seen  plaintiff; 
and  it  was  not  until  he  had  called  on  the 
witness,  and  satisfied  him  of  the  falsity  of 
the  assertions  made  by  defendant,  that 
the  witness  renewed  his  visits.  Upon  this 
testimony  plaintiff  rested.  A  motion  was 
made  for  a  nonsuit,  which  was  granted. 
Plaintiff  moved  to  set  aside  the  nonsuit. 

P.  B.  Sweeney  and  J.  T.  Brady,  for  the 
motion.     T.  W.  Clerks,  opposed. 

Vanderpoel,  J.  Itcannot  be  pretended 
that  the  words  proved  to  have  been 
spoken  by  the  defendant  are  actionable 
jierse;  but  it  is  contended  that  they  con- 
vey an  imputation  affecting  the  business 
of  the  plaintiff,  and  are  therefore  actiona- 


SLANDER  AND  LIBEL. 


119 


ble.  It  is  a  well-established  rule  tbat 
words  are  actionable  whicli  directly  tend 
to  the  prejudice  of  anj'  one,  in  his  office, 
trade,  business,  or  means  of  getting  a  live- 
lihood. Onslow  V.  Horno,  3  Wils.  18G; 
Starkie,  Sland.  &  L.  ISO.  The  words,  to 
be  actionable,  because  the.v  injure  one  in 
his  business,  must  have  a  direct  tendency 
to  produce  this  effect.  They  must  relate 
to  his  business  character.  In  Doyley  v. 
Roberts,  3  Bing.  N.  C.  835,  it  wa.s  said  of  an 
attorney,  "He has  defrauded  his  creditors, 
and  has  been  horsewhipped  off  tlie  course 
at  Doncaster. "  The  jury  found  that  the 
words  tended  to  injure  the  plaintiff  moral- 
ly and  professionally',  but  they  also  found 
they  were  not  spoiien  of  him  in  his  busi- 
ness of  an  attornej',  and  for  that  reason 
the  court  ordered  a  nonsuit.  Tindal,  C. 
J.,  said  the  words,  though  spoken  of  an 
attorney,  do  not  touch  him  in  his  pro- 
fession, any  more  then  they  would  touch 
a  person  in  any  other  trade  or  pro- 
fession. So  here,  though  the  words  were 
spoken  of  a  man  who  happened  to  keep 
a  public  garden  and  house  of  entertain- 
ment, they  did  not  touch  or  affect  him 
more  than  they  would  have  touched  or 
affected  a  person  in  any  other  business  or 
profession.  In  Southam  v.  Allen,  3  Salk. 
326,T.Raym.231,the  plaintiff  declared  that 
he  was  a  keeper  of  a  livery  stable,  and  of 
the  Bell  Savage  Inn,  and  that  the  defend- 
ant had  other  stables  there,  and  that  W. 
R.,  coming  thither  with  a  wagon,  inquired 
of  the  defendant  which  was  the  Bell  Sav- 
age Inn,  who  replied,  "This  is  Bell  Sav- 
age Inn;  deal  not  with  Southam,  [the 
plaintiff,]  for  he  is  broke,  and  there  is  nei- 
ther entertainment  for  man  or  horse." 
After  verdict  for  the  plaintiff,  the  judg- 
ment was  affirmed.  This  was  a  charge 
that  came  directly  home  to  the  business 
of  the  plaintiff.  But  to  say  of  a  man,  "I 
am  afraid  to  go  to  his  house  alone;"  "He 
is  a  desperate  man  ;"  "He  is  a  dangerous 
man;"'  "I  am  afraid  of  my  life," — is  no 
more  calculated  directly  to  affect  his  busi- 
ness as  keeper  of  a  house  of  entertainment 
than  to  prejudice  his  business  as  a  mer- 
chant, a  baker,  or  a  blacksmith.  All  gen- 
eral imputations  upon  the  morality  or  in- 
tegrity of  men,  if  believed  by  those  who 
hear  them,  may  possibly  prejudice  the 
business  interests  of  those  of  whom  they 
are  spoken  ;  but  the  law  has  not  yet  been 
KO  prolific  of  slander  suits  as  to  say  that 
such  general  ebullitions,  charging  no  crime, 
and  pointing  to  no  profession  or  means  of 
livelihood,  shall  form  the  legitimate  foun- 
dation of  an  action  for  defamation. 
Words,  to  be  actionable,  as  affecting  the 
plaintiff's  business,  must  charge  some  de- 
linquency in  connection  with  such  busi- 
ness. In  the  late  case  of  Van  Tassel  v. 
Capron,  1  Denio,  250,  it  was  expressly  held 
that,  where  words  are  actionable  only  on 
account  of  the  official  or  professional 
character  of  the  plaintiff,  it  is  not  enough 
that  they  tend  to  injure  him  in  his  office 
or  calling,  but  they  must  relate  to  his  offi- 
cial or  business  character,  and  impute 
misconduct  to  him  in  that  character.  As 
the  words  here  are  notactionat)le  in  them- 
selves, and  do  not  relate  to  the  business  of 
the  plaintiff,  the  nonsuit  was  properly 
granted. 


(18  Barb.  425.) 
SECOR    v.  H.4.KRIS. 

{Supreme  CouH  of  New  York,  General  Term. 
Sept.  12,  1S54.) 

1.  Slander — Words  Imputing  Want  of  Profes- 

sional Skill. 
To  charge  a  physician  with  gross  ignorance  and 
unskillf  ilness  in  his  profession,  though  in  but 
a  single  act,  is  actionable  per  se.  In  such  a  case 
the  law  presumes  damage  from  the  very  nature  of 
the  charge. 

2.  Same. 

To  say  of  a  physician  in  regard  to  his  treat- 
ment of  children  not  over  three  years  of  age,  "He 
killed  my  children.  He  gave  them  tea-spoonful 
doses  of  calomel,  and  it  killed  them.  They  died 
the  same  day,  " — is  actionable. 

Shankland,  J.,  dissenting. 

Motion  for  new  trial. 

Argued  before  Crippen,  Shankland,  and 
Mason,  J  J 

F.  U.  Feuno,  for  the  motion.  W.  B. 
Hawes,  opposed. 

Mason,  J.    This  is  an  action  for  slander. 
Upon     trial    of    the    cause,     the  plaintiff 
proved  the  following   words,  which    were 
also  alleged   in  the  complaint :   "  Dr.  Secor 
killed  my  children."   "He  gave  them  tea- 
spoonful   doses  of  calomel,  and    they  died. 
Dr.  Secor  gave  them  teaspoonful  doses  of 
calomel,  and  it  killed  them.     They  did  not 
livelong  after  they   took   it.     They   died 
right   off,   the  same   day. "    The   plaintiff 
was  proved  to  be  a   practicing  physician, 
and  the  evidence  shows  that   he  had  prac- 
ticed  in  the  defendant's  family,  and   had 
prescribed    for  the    defendant's  children, 
and   that  the  words   were  spoken  of   him 
in  his  character  of  a  physician.     The  plain- 
tiff claimed   that  the   words    were  action- 
able, and   that  he  was  entitled   to  have 
this  branch   of  the  case,  upon   the  words, 
submitted  to  the  jury.     The  judge   at  the 
circuit  held  that   the   words   were  not  ac- 
tionable, and  took  them  from   the  consid 
eration  of  the  jury.     These  words   spoken 
of  the  plaintiff  as   a   physician  are  action- 
able per  se,  whatever  va.a.j  be  said  upon 
the  question  whether  thej'  impute  a  crim- 
inal  offense.     They  do  not  impute  a  crim- 
inal offense,  unless  there  is  evidence,  aris- 
ing from   the  quantity   of  calomel  which 
the  defendant   alleged   that   the    plaintiff 
gave  these  children,   from    which    a  jury 
would  be  justified   in  finding  an  intention 
to  kill  them.   One  of  them  was  three  years 
of  age,  and  the  other  one  year  and  a  half. 
If  the  natural  result,  which  should  reason- 
ably be  expected   from  feeding  children  of 
tender  years  full  tea-spoon-doses   of  calo- 
mel, would  be  certain  death,  then  it  is  not 
a  forced  construction  of   the  words  to  say 
that  the  defendant  intended  to  charge  the 
plaintiff  with  an  intention  to  kill  these  chil- 
dren in  giving  them  such   doses.     It  is  not 
necessary,  however,  to  say  that  the  judge 
should  have  submitted    this  case   to   the 
jury   upon   the   question   whether  the  de- 
fendant did   not   intend   to   impute  to  the 
plaintiff,    hy  these   words,  a  criminal   of- 
fense.    I  am  quite  inclined  to  think,  how- 
ever, that   had   the  judge  submitted   the 
case  to  the  jury  upon  the  imputation  of  a 
criminal    intent  in  these  words,  and   had 
the  jury  found    that   such  intent   was  im- 
puted, we  should  not  be  justified  in  setting 


120 


LAW  OF  TORTS. 


aside  their  verclict.  It  is  not  necessary, 
however,  to  place  the  case  upon  this 
ground ;  for  it  is  certainly  slanderous  to 
say  of  a  physician  that  he  killed  these  chil- 
dren of  such  tender  years,  by  gi%'ing  them 
tea-spoonful  doses  of  calomel.  Thecharge, 
to  say  the  least,  imports  such  a  total  ig- 
norance of  his  profession  as  to  destroy  all 
confidence  in  the  physician.  It  is  a  dis- 
grace to  a  physician  to  have  it  believed 
that  he  is  so  ignorant  of  this  most  famil- 
iar and  common  medicine  as  to  give  such 
quantities  thereof  to  such  young  children. 
The  law  is  well  settled  that  words  pub- 
lished of  a  physician,  falsely  imputing  to 
him  general  igaorance  or  want  of  skill  in 
his  profession,  are  actionable,  in  them- 
selves, on  the  ground  of  presumed  dam- 
age. Starkie,  Sland.  &  L.  100,  110,  115,  120, 
122;  Martyn  v.  Burlings,  Cro.  Eliz.  589; 
Bac.  Abr.  tit.  "Slander,"  B;  Watson  v. 
Vanderlash,  Het.  69;  Tutty  v.  Alewin,  11 
Mod.  221;  Smith  v.  Taylor,  1  Bos.  &  P. 
(N.R.)196;  Sumner  v.  Utley, 7  Conn. 257.  I 
am  aware  that  it  was  held  in  the  case  of 
Poe  V.  Mondford,  Cro.  Eliz.  G20,  that  it  is 
not  actionable  to  say  of  a  physician.  "He 
hath  killed  a  patient  with  physic;"  and 
that,  upon  the  strength  of  the  authority  of 
that  case,  it  was  decided  in  this  court  in 
Foot  V.Brown, 8  Johns.54,  thatit  was  not 
actionable  to  say  of  an  attorney  or  coun- 
selor, when  speaking  of  a  particular  suit, 
"He  knows  nothing  about  the  suit;  he 
will  lead  you  on  until  he  has  undone  you.  " 
These  cases  are  not  sound.  The  case  of 
Poe  V.  Mondford  is  repudiated  in  Bacon's 
Abridgment  as  authority,  and  cases  are 
referred  to  as  holding  a  contrary  doctrine. 
Volume  9,  pp.  49,  50.  The  cases  of  Poe  v. 
Mondford  and  of  Foot  v.  Brown  were  re- 
viewed by  the  supreme  court  of  Connecti- 
cut in  the  case  of  Sumner  v.  Utley,  7  Conn. 
257,  with  most  distinguished  ability,  and 
the  doctrine  of  those  cases  repudiated.  In 
the  latter  case  it  is  distinctly  held  that 
words  are  actionable  in  themselves  which 
charge  a  physician  with  ignorance  or 
want  of  skill  in  his  treatment  of  a  partic- 
ular patient,  if  the  charge  be  such  as  im- 
ports gross  ignorance  or  unskillfulness. 
To  the  same  effect  is  the  case  of  Johnson  v. 
Robertson,  8  Port.  ( Ala. )  486,  where  it  was 
held  that  the  following  words,  spoken  of 
a  physician  in  regard  to  his  treatment  of 
a  particular  case,  "He  killed  the  child  by 
giving  it  too  much  calomel,"  are  action- 
able in  themselves;  and  such  is  the  case  of 
Tutty  V.  Alewin,  11  Mod.  221,  where  it  was 
held  to  be  actionable  to  say  of  an  apothe- 
cary that  "he  killed  a  patient  with  phys- 
ic." See,  also,  Onslow  v.  Home,  3  Wils.  186; 
Bac.  Abr.  tit.  "Slander,"  B  2,  vol.  9,  p. 
49,  (Bouv.  Ed.)  The  cases  of  Poe  v.  Moud- 
fbrd  and  Foot  v.  Brown  have  been  repu- 
diated by  the  highest  judicial  tribunal  in 
two  of  the  American  states,  while  the  case 
of  Poe  v.  Mondford  seems  to  have  been  re- 
pudiated in  England;  and  I  agree  with 
Clinch.  J.,  that  the  reason  upon  which 
the  case  is  decided  is  not  apparent.  I  do 
not  go  the  length  to  say  that  falsehood 
may  not  be  spoken  of  a  physician's  prac- 
tice, in  a  particular  case,  without  subject- 
ing the  party  to  this  action.  A  physician 
may  mistake  the  symptoms  of  a  patient, 
or  may  misjudge  as  to   the  nature  of   his 


disease,  and  even  as  to  the  powers  of  med- 
icine, and  yet  his  error  may  be  of  that 
pardonable  kind  that  will  do  him  no  es- 
sential prejudice,  because  it  is  rather  a 
proof  of  human  imperfection  than  of  cul- 
pable ignorance  or  unskillfulness;  and, 
where  charges  are  made  against  a  physi- 
cian that  fall  within  this  class  of  cases, 
they  are  not  actionable  without  proof  of 
special  damages.  7  Conn.  257.  It  is  equal- 
ly true  that  a  single  act  of  a  physician 
may  evince  gross  ignorance,  and  such  a 
total  want  of  skill  as  will  not  fail  to  in- 
jure his  reputation,  and  deprive  him  of 
general  confidence.  When  such  a  charge 
is  made  against  a  physician,  the  words 
are  actionable  perse.  Id.  The  rule  may 
be  laid  down  as  a  general  one  that,  when 
the  charge  implies  gross  ignorance  and  un- 
skillfulness in  his  profession,  the  words 
are  actionable  per  se.  This  is  upon  the 
ground  that  the  law  presumes  damage  t» 
result  from  the  very  nature  of  the  charge. 
The  law  in  such  a  case  lays  aside  its  usual 
strictness;  for  when  the  presumption  of 
damage  is  violent,  and  the  difiiculty  of 
proving  it  is  considei*able,  the  law  supplies 
the  defect,  and,  by  converting  presump- 
tion into  proof,  secures  the  character  of 
the  sufferer  from  the  misery  of  delay,  and 
enables  him  at  once  to  face  the  calumny 
in  open  court.  Starkie,  Sland.  &  L.  581. 
It  was  well  said  by  the  learned  Chief  Jus- 
tice HosMER  in  Sumner  v.  Utley,  7  Conn. 
257,  that,  "as  a  general  principle,  it  can 
never  be  admitted  that  the  practice  of  a 
physician  or  surgeon  in  a  particular  case 
may  be  calumniated  with  impunity,  un- 
less special  damage  is  shown.  By  con- 
fining the  slander  to  particulars,  a  man 
may  thus  be  ruined  in  detail.  A  calumni- 
ator might  follow  the  track  of  the  plain- 
tiff, and  begin  by  falsely  ascribing  to  a 
physician  the  killing  of  three  persons  by 
mismanagement,  and  then  the  mistaking 
an  artery  for  a  vein,  and  thus  might  pro- 
ceed to  misrepresent  every  single  case  of 
his  practice,  until  his  reputation  should  be 
blasted  beyond  remedy.  Instead  of  mur- 
dering character  by  one  stroke,  the  victim 
would  be  cut  successively  in  pieces,  and 
the  only  difference  would  consist  in  the 
manner  of  effecting  the  same  result.  "  It  i» 
true,  as  was  said  by  the  learned  Chief  Jus- 
tice HosMER  in  that  case,  the  redress  pro- 
posed, on  the  proof  of  special  damage,  is 
inadequate  to  such  a  case.  Much  time 
may  elapse  before  the  fact  of  damage  ad- 
mits of  any  evidence,  and  then  the  proof 
will  always  fall  short  of  the  mischief.  In- 
the  mean  time  the  reputation  of  the  ca- 
lumniated person  languishes  and  dies,  and 
hence,  as  we  have  before  said,  the  pre- 
sumption of  damage  being  violent,  and 
the  difficulty  of  proving  it  considerable, 
the  law  supplies  the  defect  by  convert- 
ing presumption  of  damage  into  proof, 
(Starkie,  Sland.  &  L.  581;)  in  other  words, 
the  law  presumes  that  damages  result 
from  the  speaking  of  the  words.  In  the 
case  under  consideration,  the  words  proved 
impute  to  the  plaintiff  such  gross  igno- 
rance of  his  profession,  if  nothing  more,  as 
would  be  calculated  to  destroy  his  char- 
acter wherever  the  charge  should  be  cred- 
ited. It  would  be  calculated  to  make  all 
men  speak   out   and  say,  as  did   the  wit- 


SLANDER  AND  LIBEL. 


121 


ness  Richard  Morris,  "that  it  was  out- 
rageous, and  the  plaintiff  ou^ht  not  to  be 
pfirinitted  to  practice."  The  law  will 
therefore  presume  damages  to  result  from 
the  speaking  of  the  words,  and  conse- 
quently hold  the  words  actionable  in 
themselves.  The  judge  at  the  circuit  erred 
in  taking  this  branch  of   the  case  from  the 

(See,  also,  Cruikshank  v.  Gordon,  118  N.  Y.  178,  2.3  N.  E.  Rep.  4.57;  Gauvreau  v.  Superior  Pub.  Co., 
62  Wis.  403,  22  N.  W.  Rep.  726;  De  Pew  v.  Rjbinsou,  95  Ind.  109;  Fitzgerald  v.  Redfield,  51  Barb. 
484;  Lumby  v.  AUday,  1  Cromp.  &  J.  301.) 


consideration  of  the  jury,  and  a  new  trial 
must  be  granted,  costs  to  abide  the  event 
of  the  action. 
New  trial  granted. 

Crippen,  J.,  concurred. 

Shanki.and,  J,,  dissented. 


B.  Slandeb  with  Special  Damage. 


(17  N.  Y.  54.) 
Terwilliger  v.  Wands. 

(Court  of  Appeals  of  New  York.     March,  1858. ) 

1.  Slander  —  Special  D.oiage  —  Repetition  by 

Otiieu  Persons. 
Damages  caused  by  the  repetition  of  defamatory 
words  by  the  person  to  whom  they  were  spoken, 
without  proper  occasion  lor  repeating  them,  are 
not  the  natural  and  legal  consequence  of  the  first 
speaking  of  them,  and  the  person  so  repeating 
them  is  alone  liable  for  such  damages. 

2.  Same. 

Illness  and  inability  to  Jabor,  caused  by  the 
effect  on  one's  mind  of  defamatory  words  reported 
to  him  to  have  been  spoken  of  him,  are  not  spe- 
cial damages  for  which  he  can  maintain  an  action 
of  slander.  Only  injuries  affecting  the  reputa- 
tion are  the  subject  of  the  action.  The  words 
must  in  fact  disparage  the  character,  and  this 
disparagement  must  be  evidenced  by  some  posi- 
tive loss  arising  therefi'om,  directly  and  legiti- 
mately, as  a  fair  and  natural  result. 

Roosevelt,  J.,  dissenting. 

Appeal  from  supreme  court,  general 
term,  fifth  district. 

Action  for  slander.  The  complaint  al- 
leged the  speaking  by  defendant  of  words 
charging  plaintiff  with  lewd  and  unchaste 
conduct,  and  also  alleged  special  damage 
therefrom.  At  the  trial,  several  witnesses 
for  plaintiff,  among  them  La  Fayette 
Wands  and  John  y.  Neiper,  testitied  to 
the  speaking  of  such  words  b3'  defendant, 
charging  plaintiff  with  continued  unlaw- 
ful intercourse  with  a  Mrs.  Fuller  at  her 
liouse.  The  only  evidence  that  what  de- 
fendant said  was  communicated  to  plain- 
tiff was  that  given  by  the  witness  Neiper, 
who,  having  testified  to  the  speaking  of 
such  words  by  defendant  to  him  in  the  be- 
ginning of  May,  ]S52,  further  testified  that 
he  had  married  the  sister  of  Mrs.  Fuller, 
and  that  he  was  an  intimate  friend  of 
plaintiff;  that  in  May,  1852,  he  communi- 
cated to  plaintiff  what  defendant  had  said 
to  him,  and  in  June  of  the  same  year,  while 
hoeing  corn  with  plaintiff,  talked  over 
what  La  ?"ajette  Wands  had  said  de- 
fendant had  told  him;  that  the  story  of 
what  La  Faj'ette  Wands  had  said  defend- 
ant told  him  was  all  over  the  country  ; 
that  the  witness  told  plaintiff  what  the 
report  was,  that  he  went  to  Mrs.  Ful- 
ler's for  the  purpose  of  having  connection 
with  her;  that  plaintiff  felt  bad,  threw 
down  his  hoe,  and  left  the  field,  that 
plaintiff  had  always  worked  with  the 
witness  before  that,  and  he  had  been  in 
middling  good  health;  that  plaintiff  after 
that  appeared  melancholy,  and  looked 
bad,   pale,    and    sick;    his    appetite    was 


poor,  and  he  had  to  hire  more  help.  Nan- 
cy Harpburn,  a  daughter  of  the  plaintiff, 
testified  that  she  heard  the  report  that 
La  Fayette  Wands  had  circulated  the 
1st  of  May,  1852;  that  she  remembered, 
when  Neiper  hoed  corn  there,  of  plaintiff's 
getting  worse,  going  into  the  house,  and 
to  bed  ;  that  she  remarked  a  great  differ- 
ence in  his  appearance,  not  resting  at 
night;  did  not  discover  any  other  differ- 
ence; he  did  not  pursue  his  work  as  for- 
merly; this  debility  commenced  in  June; 
heard  of  Wand's  report  in  May  or  June; 
first  heard  of  its  coming  through  La  Fa- 
yette Wands,  in  June,  about  the  middle 
of  hoeing  time,  and  then  remarked  a  differ- 
ence in  his  appearance;  he  grew  worse  all 
through  the  summer.  On  cross-examina- 
tion she  testified  that  she  heard  some 
slight  reports  through  the  winter  that 
he  was  very  intimate,  and  more  than  was 
proper,  with  Mrs.  Fuller,  and  had  fre- 
quent conversations  with  herfather  about 
it;  that  she  knew  that  Mr.  Fuller  made 
such  charges  during  the  winter  and  sum- 
mer, and  that  she  talked  with  her  father 
about  what  Fuller  had  said  ;  that  a  lady 
told  her  in  May  it  was  reported  Fuller 
had  caught  her  father  there,  and  she  told 
her  father  in  June;  that  Dr.  Price  pre- 
scribed for  the  plaintiff  in  June  and  July. 
Dr.  Price  testified  that  he  calleil  to  see 
plaintiff  as  a  patient  in  May  or  June,  1852; 
that  plaintiff  was  debilitated  with  what 
appeared  to  be  mental  difficulty;  that  he 
judged,  from  what  plaintiff's  friends  said, 
that  plaintiff's  health  was  impaired  so 
that  he  could  not  labor  on  his  farm  ;  that 
plaintiff  was  out  of  health  through  the 
summer.  George  Terwilliger,  a  son  of 
plaintiff,  testified  .that  he  saw  plaintiff 
frequently  along  in  May  and  .Tune,  18.52; 
that  his  health  in  the  winter  was  good, 
and  began  to  decline  about  the  1st  (»f  May, 
and  became  worse  after  that,  and  dur- 
ing the  summer  he  was  entirely'  prostrat- 
ed ;  that  he  became  wor.se,  and  unable  to 
attend  to  his  business,  and  neglected  it; 
his  crops  were  neglected  and  fences  down  ; 
his  corn  suffered  for  want  of  hoeing;  that 
the  plaintiff  appeared  like  a  person  worn 
down  by  sickness  in  May,  June,  and  July; 
he  was  a  farmer,  and  his  business  re- 
quired his  personal  attention  every  day. 

Plaintiff  having  rested,  defendant  moved 
for  a  nonsuit  on  the  grounds:  (1)  That 
the  woids  were  not  spoken  by  defendant 
to  the  plaintiff,  nor  authorized  by  him  to 
be  communicated  to  plaintiff;  (2)  that 
there  was   no  evidence  that   the  damages. 


122 


LAW  OF  TORTS. 


if  any,  proved,  were  occasioned  by  the 
speaking  of  the  words  by  the  defendant. 
The  court  granted  the  motion,  and  judg 
ment  was  entered  against  plaintiff,  and 
was  affirmed  on  appeal  to  the  general 
term.  Plaintiff  appealed  from  the  judg- 
ment of  affirmance  by  the  general  terra. 
B.  D.  Noxon,  for  appellant.  Leroy  Mor- 
gan, for  respondent. 

Strong,  J.  The  words  spoken  by  the  de- 
fendant not  being  actionable  of  themselves, 
it  was  necessary',  in  order  to  maintain  the 
action,  to  prove  that  they  occasioned  spe- 
cial damages  to  the  plaintiff.  The  special 
damages  must  have  been  the  natural,  im- 
mediate, and  legal  consequence  of  the 
words.  Starkie,  Sland.  &  L.  (Wend.  2d 
Ed.)  203;  2  Starkie,  Sland.  &  L,.  62,  64; 
Beach  v.  Rauney,  2Hill,309;  Grain  v.  Petrie, 
6  Hill,  523;  Kendall  v.  Stone,  5  N.  Y.  14. 
Where  words  are  spoken  to  one  person, 
and  he  repeats  them  to  another,  in  conse- 
quence of  which  the  party  to  whom  they 
are  spoken  sustains  damages,  the  repeti- 
tion is,  as  a  general  rule,  a  wrongful  act, 
rendering  the  person  repeating  them  lia- 
ble in  like  manner  as  if  he  alone  had  ut- 
tered them.  The  special  damages  in  such 
a  case  are  not  a  natural,  legal  conse- 
quence of  the  first  speaking  of  the  words, 
but  of  the  wrongful  act  of  repeating 
them,  and  would  not  have  occurred  but 
for  the  repetition,  and  the  party  who  re- 
peats them  is  alone  liable  for  the  dam- 
ages. Ward  V.  Weeks,  7  Bing.  211 ;  Hast- 
ings V.  Palmer,  20  Wend.  225;  Keenholts  v. 
Becker,  3  Denio,  346;  Stevens  v.  Hart  well, 
11  Mete.  (Mass. )  542.  These  views  dispose  of 
this  case  as  to  the  right  of  action  in  re- 
spect to  all  the  words  but  those  spoken  to 
the  witness  Neiper,  as  none  of  them  were 
spoken  by  the  defendant  in  the  presence 
of  the  plaintiff,  or  communicated  to  the 
plaintiff  by  the  witnesses  to  whom  they 
were  spoken  by  the  defendant;  and  there 
is  no  proof  as  to  the  circumstances  under 
which  they  were  repeated  b\'  those  wit- 
nesses. In  the  absence  of  evidence  of 
those  circumstances,  the  general  rule, 
that  a  repetition  of  slanderous  words  is 
wrongful,  applies;  hence  any  damages 
which  resulted  from  repeating  them  are  a 
consequence  of  that  wrong,  and  not  a 
natural,  immediate,  and  legal  effect  of  the 
original  speaking  of  the  words  by  the  de- 
fendant. 

In  regard  to  the  words  spoken  by  the 
defendant  to  Neiper,  it  is  proved  that  they 
were  communicated  by  the  latter  to  the 
plaintiff,  and  that  Neiper  was  at  the  time 
an  intimate  friend  of  the  plaintiff.  This 
friendly  relation,  it  is  claimed  on  the  part 
of  the  plaintiff,  rendei'ed  the  communica- 
tion of  Neiper  to  him  proper;  and,  being 
so,  it  is  insisted  that  the  defendant  is  re- 
sponsible for  the  consequences,  in  the  same 
manner  as  if  the  words  had  been  spoken 
directly  to  the  plaintiff.  There  are  sev- 
eral cases  in  which  it  is  suggested  that 
circumstances  may  exist  which  will  justify 
the  repetition  of  slanderous  words,  and 
that  wheu  repeated  under  such  circum- 
stances, and  damages  ensue,  the  first 
speaker  may  be  liable  in  like  manner  as  he 
would  be  if  the  injury  had  arisen  from  the 
words   without   the  repetition.     AVard  v. 


Weeks,  7  Bing.  211;  Keenholts  v.  Becker, 
3  Denio,  346,  Olmsted  v.  Brown,  12  Barb. 
6.57;  McPherson  v.  Daniels,  10  Barn.  &  C. 
263.  Occasions  may  doubtless  occur  wherfi 
the  communication  of  slanderous  words 
by  a  person  who  heard  them  will  be  inno- 
cent; and  it  is  certainly  reasonable  that 
when  repeated  on  such  an  occasion,  and 
damages  result,  the  first  speaker  should 
be  held  responsible  for  the  damages,  as 
flowing  directly  and  naturally  from  his 
own  wrong.  It  is  not  necessar3^  in  the 
present  case  to  decide  whether  the  propo- 
sition is  law;  for,  assuming  it  to  be  so, 
and  that  illness  and  inability  to  labor  con- 
stitute such  special  damages  as  will  sup- 
port an  action,  the  evidence  in  this  case 
wholly  fails  to  show  that  the  damages  were 
a  consequence  of  the  words  spoken  by  the 
defendant  to  Neiper.  The  proof  is  that 
they  were  mainly  the  result  of  the  repeti- 
tion of  the  words  spoken  to  the  witness 
Wands,  and  reports  of  other  persons.  It 
was  not  until  a  considerable  time  after  the 
plaintiff  was  informed  by  Neiper  what  the 
defendant  had  said  to  the  latter  that  he 
began  to  be  ill,  and  his  illness  commenced 
immediately  after  the  communication  to 
him  of  what  had  been  said  by  La  Fayette 
Wands.  At  that  time  the  plaintiff  had 
been  informed  of  charges  made  by  Fuller 
to  the  same  effect,  and  it  is  a  fair  con- 
clusion upon  the  proof  that  he  then  knew 
what  the  witness  Wands  says  was  a  fact, 
that  "  the  story  was  all  over  the  country.  " 
Under  these  circumstances,  it  is  impossible 
to  conclude  that  what  the  defendant  stat- 
ed to  Neiper  produced  the  damages.  1 
Starkie,  Sland.  &  L.  205;  Vicars  v.  Wil- 
cocks,  8  East,  1 ;  Grain  v.  Petrie,  6  Hill, 
522. 

But  there  is  another  ground  upon  which 
the  judgment  must  be  affirmed.  The  spe- 
cial damages  relied  upon  are  not  of  such  a 
nature  as  will  su[)port  the  action.  The 
action  for  slander  is  given  by  the  law  as 
a  remedy  for  "injuries  affecting  a  man's 
reputation  or  good  name  by  malicious, 
scandalous,  and  slanderous  words,  tend- 
ing to  his  damage  and  derogation."  3  Bl. 
Gomm.123;  Starkie,  Sland.  &  L.  Prelim. 
Obs.  22-29;  1  Starkie,  Sland.  &  L.  17,  18. 
It  is  injuries  affecting  the  reputation  only 
which  are  the  subject  of  the  action.  In 
the  case  of  slanderous  words  actionable 
per  se,  the  law,  from  their  natural  and 
immediate  tendency  to  produce  injury,  ad- 
judges them  to  be  injurious,  though  no 
special  loss  or  damage  can  be  proved. 
"But  with  regard  to  words  that  do  not 
apparently  and  upon  the  face  of  them  im- 
port such  defamation  as  will  of  course  be 
injurious,  it  is  necessary  that  the  plaintiff 
should  aver  some  particular  damage  to 
have  happened."  3  Bl.  Gomm.  124.  As  to 
what  constitutes  special  damages,  Starkie 
mentions  the  loss  of  a  marriage;  loss  of 
hospitable  gratuitous  entertainment;  pre- 
venting a  servant  or  bailiff  from  getting  a 
place;  the  loss  of  customers  by  a  trades 
man;  and  says  that,  in  general,  whenever 
a  person  is  prevented  by  the  slander  from 
receiving  that  which  would  otherwise 
be  conferred  upon  him,  though  gratuitous- 
Iv,  it  is  sufficient.  1  Starkie.  Sland  &  L. 
195,  202;  Cooke,  Dcfani.  22-24.  In  Olm- 
sted V.  Miller,  1   Wend.   506,   it   was   held 


SLANDER  AND  LIBEL. 


123 


that  the  refusal  of  civil  entertainment  at 
a  XJublic  houne  was  sufficient  special  dara- 
«ge.  So  in  Williams  v.  Hill,  19  Wend.  305, 
was  the  fact  that  the  plaintiff  was  turned 
away  from  the  house  of  her  uncle,  and 
charged  not  to  return  until  she  had  cleared 
up  her  character.  So,  in  Beach  v.  Rauney, 
supra,  was  the  circumstance  that  persons 
who  had  been  in  the  habit  of  doing  so,  re- 
fused longer  to  provide  fuel,  clothing,  etc. 
2  Starkie,  Ev.  872,  873.  These  instances 
are  sufficient  to  illustrate  the  kind  of  spe- 
cial damage  that  must  result  from  defam- 
atory words  not  otherwise  actionable  to 
make  them  so;  they  are  damages  produced 
by  or  through  impairing  the  reputation. 

It  would  be  highly  impolitic  to  hold  all 
language,  wounding  the  feelings,  and 
affecting  unfavorably  the  health  and  abil- 
ity to  labor,  of  another,  a  ground  of  ac- 
tion ;  for  that  would  be  to  make  the  right 
of  action  depend  often  upon  whether  the 
sensibilities  of  a  person  spoken  of  are  easi- 
ly excited  or  otherwise;  his  strength  of 
mind  to  disregard  abusive,  insulting  re- 
marks concerning  him  ;  and  his  physical 
strength  and  ability  to  bear  them.  Words 
which  would  make  hardly  an  impression 
on  most  persons,  and  would  be  thought 
by  them,  and  should  be  by  all,  undeserv- 
ing of  notice,  might  be  exceedingly  painful 
to  some,  occasioning  sickness  and  an  in- 
terruption of  ability  to  attend  to  their  or- 
dinary avocations.  There  must  be  some 
limit  to  liability  for  words  not  actionable 
perse,  both  as  to  the  words  and  the  kind 
of  damages;  and  a  clear  and  wise  one  has 
been  tixed  by  the  law.  The  words  must 
be  defamatory  in  their  nature;  and  must 
in  fact  disparage  the  character;  and  this 
disparagement  must  be  evidenced  by  some 
positive  loss  arising  therefrom,  directl3' 
and  legitimately,  as  a  fair  and  natural  re- 
sult. In  this  view  of  the  law,  words 
which  do  not  degrade  the  character  do 
not  injure  it,  and  cannot  occasion  loss. 
In  Cooke's  Law  of  Defamation,  (page  24,) 
it  is  said  :  "In  order  to  render  the  conse- 
quence of  words  spoken  special  damage, 
the  words  must  be  in  themselves  dispar- 
aging; for.  If  they  be  innocent,  the  conse- 
quence does  not  follow  naturally  from  the 
cause."  In  Kelly  v.  Partington,  5  Barn. 
&  Adol.  645,  which  was  an  action  for  slan- 
der, the  words  in  the  declaration  were, 
"She  secreted  Is.  6d.  under  the  till,  stating 
these  are  not  times  to  be  robbed.  "  It  was 
alleged  as  special  damage  that  bj'  reason 
of  the  speaking  of  the  words  a  third  per- 
son refused  to  take  the  plaintiff  into  serv- 
ice. The  plaintiff  recovered  one  shilling 
damages,  and  tlie  defendant  obtained  a 
rule  nisi  for  ariesting  the  judgment,  on 
the  ground  that  the  words,  taken  in  their 
grammatical  sense,  were  not  disjia raging 
to  the  plaintiff,  and  therefore  that  no  spe- 
cial damage  could  result  from  them.  Den- 
man,  C.  J.,  said:  "The  words  do  not  of 
necessity  import  anything  injurious  to  the 
plaintiff's  character,  and  we  think  the 
judgment  must  be  arrested,  unless  there  be 
something  on  the  face  of  the  declaration 
from  which  the  court  can  clearly  see  that 
the  slanderous  matter  alleged  is  injurious 
to  the  plaintiff.  Where  the  words  are 
ambiguous,  the  meaning  can  be  supplied 
by   innuendo;    but  that  is   not   the  case 


here.  The  rule  for  arresting  the  judgment 
must  therefore  be  made  absolute. "  Lit- 
TLEDALi:,  J.,  said :  "I  cannot  agree  that 
words  laudatory  of  a  party's  conduct 
would  be  the  subject  of  an  action  if  they 
were  followed  by  special  damage.  They 
must  be  defamatory  or  injurious  in  their 
nature.  In  Coniyns' Digest,  tit.  'Action 
on  the  Case  for  Defamation,'  (D  730,)  it  is 
said  generally  that  anj'  words  are  action- 
able by  which  the  partj'  has  a  special 
damage,  but  all  the  examples  given  in  illus- 
tration of  the  rule  are  of  words  defama- 
tory in  themselves,  but  not  actionable, 
because  they  do  not  subject  the  party  to 
a  temporal  punishment.  In  all  the  in- 
stances put,  the  words  are  injurious  to 
the  reputation  of  the  person  of  whom  they 
wei'e  spoken."  Taunton,  J.,  said :  "The 
expression  ascribed  to  the  defendant, '  these 
are  not  times  to  be  robbed,'  seems  to  be 
saying  the  times  are  so  bad  I  must  hide 
my  money.  If  Stenning  refused  to  take  the 
plaintiff  into  his  service  on  this  account, 
he  acted  without  reasonable  cause ;  and, 
in  order  to  make  words  actionable,  they 
must  be  such  that  special  damage  may  be 
the  fair  and  natural  result  of  them." 
Patteson,  J.,  said :  "I  have  always  un- 
derstood that  the  special  damage  must  be 
the  natural  result  of  the  thing  done,  etc. 
It  is  said  that  the  words  are  actionable, 
because  a  person,  after  hearing  them, chose 
In  his  caprice  to  reject  the  plaintiff  as  a 
servant.  But,  if  the  matter  was  not  in  its 
nature  defamatory,  the  rejection  of  the 
plaintiff  cannot  be  considered  the  natural 
result  of  the  speaking  of  the  words.  To 
make  the  speaking  of  the  words  wrongful, 
they  must  in  their  nature  be  defaraator3'. 
Vicars  v.  Wilcocks,  8  East,  1."  It  neces- 
sarily follows  from  the  rule  that  the  words 
must  be  disparaging  to  character;  that 
the  special  damage  to  give  an  action  must 
flow  from  disparaging  it.  In  the  case 
last  cited  the  plaintiff  actually  suffered 
damage  from  the  defendant's  words  by 
their  bringing  her  into  disrepute,  but  the 
words  were  not  calculated  to  produce 
such  a  result,  and  therefore  the  action 
would  not  lie. 

In  the  present  case  the  words  were  de- 
famatory, and  the  illness  and  physical 
prostration  of  the  plaintiff  may  be  as- 
sumed,so  farasthis  part  of  thecase  iscon- 
cerned,  to  have  been  actually  produced  by 
theslander;  but  thisconsequence  was  not, 
in  a  legal  view,  a  natural,  ordinary  one, 
as  it  does  not  prove  that  the  plaintiff's 
character  was  injured.  The  slander  maj' 
not  have  been  credited  by  or  had  the 
slightest  influence  upon  anj'  one  unfavor- 
able to  the  plaintiff ;  and  it  does  not  ap- 
pear that  anybody  believed  it  or  treated 
the  plaintiff  any  different  from  what  they 
would  otherwise  have  done  on  account 
of  it.  The  cause  Avas  not  adapted  to  pro- 
duce the  result  which  is  claimed  to  be  spe- 
cial damages.  Such  an  effect  may,  and 
sometimes  does,  follow  from  such  a  cause, 
but  not  ordinarily;  and  the  rule  of  law 
was  framed  in  reference  to  common  and 
usual  effects,  an<l  not  those  which  are  ac- 
cidental and  occasional. 

It  is  true  that  this  element  of  the  action 
for  slander,  in  the  case  of  words  not  ac- 
tionable  of  themselves,— that   the  special 


124 


LAW  OF  TORTS. 


damages  must  flowfrom  impaired  reputa- 
tion,—has  been  overlooked  in  several  mod- 
ern cases,  and  loss  of  healtli,  and  conse- 
quent incapacity  to  attend  to  business, 
tield  sufficient  special  damage,  (Bradt  v. 
Towsley,  13  VA' end.  253;  Fuller  v.  Tenner, 
16  Barb.  333;)  but  these  cases  are  a  de- 
parture from  principle,  and  should  not 
be  followed.  If  such  consequences  were 
sufficient,  it  would  not  be  necessary  to 
allege  in  the  complaint  or  prove  that 
the  words  were  spoken  in  the  presence  of 
a  third  person.  If  spoken  directly  to  the 
plaintiff,  io  the  presence  of  no  one  else,  he 
might  himself,  under  the  recent  law  allow- 
ing parties  to  be  witnesses,  prove  the 
words  and  the  damages,  and  be  permit- 
ted to  recover.  It  has  been  regarded  as 
necessary  to  an  action  that  the  words 
should  be  published  by  speaking  them  in 
the  presence  of  some  person  other  than  the 
plaintiff,  both  in  the  case  of  words  action- 
able and  those  not  actionable.  1  Starkie, 
Sland.  &  L.  360;  2  Starkie,  Sland.  &  L.  12; 
Cooke,  Defam.  87. 

Where  there  is  no  proof  that  the  charac- 
ter has  suffered  from  the  words,  if  sickness 
results,  it  must  be  attributed  to  apprehen- 
sion of  loss  of  character;  and  such  fear 
of  harm  to  character,  with  resulting 
sickness  and  bodily  prostration,  cannot 
be  such  special  damage  as  the  law  requires 
for  the  action.  The  loss  of  character 
must  be  a  substantive  loss,— one  which 

(See,  also,  Pollard  v  Lyon,  91  U.  S.  225;  Bassell  v.  Elmore,  4S  N.  Y.  561 ;  Lynch  v.  Knight,  9  H.  L. 
Cas.  5T7;  Davies  v.  Solomon,  L.  R.  7  Q.  B.  112;  Shaler  v.  Ahalt,  48  Md.  171.) 


has  actually  taken  place.  It  is  not  neces- 
sary to  decide  whether  the  doctrine  which 
has  some  support  in  the  books,  that  a, 
husband  may  maintain  an  action  for  the 
slander  of  his  wife,  producing  sickness 
which  prevents  her  attending  to  her  or- 
dinary business,  if  it  conflicts  with  the 
principle  now  advanced,  may  be  main- 
tained upon  some  ground  of  exception  to 
the  general  rule.  It  is  doubtless  true  that 
in  such  cases  the  law  regards  more  the 
loss  of  the  wife's  services,  which  alone 
entitles  the.  husband  to  sue,  than  the  in- 
fluence of  the  words  upon  her  character, 
and  the  husband  has  no  control  over  the 
effect  of  the  words;  whereas,  in  other 
cases,  the  injury  to  character,  as  shown 
by  the  special  damages,  is  principally  re- 
garded, and  unusual,  extraordinary  con- 
sequences may  be  assumed  to  be  in  some 
measure  under  the  control  of  the  party 
complaining.  Still  the  objection  that  spe- 
cial damages  of  that  nature  are  uotafair, 
ordinary,  natural  result  of  such  a  wrong 
remains,  and  this  objection  appears  ta 
be  alike  applicable,  and  entith'd  to  the 
same  force,  whether  the  action  be  brought 
by  the  husband  or  the  party  slandered. 
Olmsted  v.  Brown,  12  Barb.  657;  Keen- 
holts  V.  Becker,  3  Denio,  346. 

Roosevelt,  J.,  dissented.    All  the  other 
judges  concurring. 
Judgment  affirmed. 


II.  LIBEL. 


(68  Me.  295.) 

TiLLSON   V.  ROBBIXS. 

(Supreme  Judicial  Court  of  Maine.    June  7, 
1878.) 

Libel— Words  Exposing  to  Public  Hatred  and 
Contempt. 
For  the  publication,  by  writing  or  printing, 
of  a  charge  such  as,  if  believed,  would  naturally 
tend  to  expose  a  person  to  public  hatred,  con- 
tempt, or  ridicule,  or  to  deprive  him  of  the 
beneiits  of  public  confidence  and  social  inter- 
course, an  action  may  be  maintained  by  him, 
without  allegations  of  special  damage,  or  of  any 
fact  to  make  such  publication  import  a  charge  of 
crime. 

On  exceptions. 

Action  by  Davis  Tillson  against  Levi  M. 
Robbins  for  libel.  The  declaration  alleged, 
in  the  first  count,  the  publication  b3-  de- 
fendant in  a  certain  newspaper,  of  and 
concerning  plaintiff,  of  the  following 
words:  "The  Hurricane  Vote.  Again  we 
have  to  chronicle  most  atrocious  corrup- 
tion, intimidation,  and  fraud  in  the  Hur- 
ricane Island  vote,  for  which  Davis  Till- 
son is  without  doubt  responsible,  as  he 
was  last  year;"  and  in  the  second  count 
the  publication  by  defendant  of  a  libel  of 
and  concerning  plaintiff  in  his  business  of 
merchant  and  contractor,  in  the  same 
words,  with  the  addition  of  the  following: 
"  Hurricane  Island  is  all  owned  by  Davis 
Tillson,an  intense  partisan  and  an  unscrup- 
ulous politician.  It  is  leased  to  govern- 
ment, and    contains   (juarries   from  which 


is  taken  granite  for  public  buildings. 
This  granite  is  bought  by  government  of 
Tillson,  and  is  there  cut  by  men  who  re- 
ceive about  $3.50  per  day.  On  all  expendi- 
tures' Tillson  has  a  gratuity  of  15  per 
cent.,  for  which  he  renders  no  equivalent, 
unless  the  lease  of  the  island  and  its  facili- 
ties be  deemed  such."  Each  count  con- 
tained innuendoes,  explaining  t  ese  words 
as  meaning  that  plaintiff  had  been  guilty 
of  the  crime  of  corruption,  intimidation, 
and  fraud  at  an  election  held  on  the  isl- 
and mentioned ;  but  there  was  no  aver- 
ment of  the  fact  of  such  election,  nor  any 
colloquium  that  the  words  were  used  in 
reference  thereto.  Defendant  demurred  to 
the  declaration.  The  demurrer  was  over- 
ruled, and  defendant  alleged  exceptions, 

D.  N.  Mortland  and  O.  P.  Hicks,  for 
plaintiff,  A.  P.  Gould  and  J.  E.  Moore, 
for  defendant. 

Barrows,  J,  The  defendant's  criticisms 
upon  the  writ  to  which  he  has  demurred 
would  be  pertinent  if  the  case  were  one  of 
mere  verbal  slander.  But  in  respect  to 
the  supposed  requirement  that,  in  order 
to  maintain  an  action  for  damages  where 
no  crime  is  imputed,  special  damage  must 
be  alleged  and  proved,  a  distinction  has 
been  long  and  uniformly  maintained  be- 
tween mere  words  and  written  or  printed 
slander.  Holt,  Libel,  (1st  Amer.  Ed.)  218- 
223.  Much  which,  if  only  spoken,  might 
be  passed  as  idle  blackguardism,  doing  no 


SLANDER  AND  LIBEL. 


125 


■  discredit  save  to  him  who  utters  it,  when 
invested  with  the  dignity'  and  malignity 
of  print  is  capable,  by  reason  of  its  per- 
manent character  and  wide  dissemina- 
tion, of  inflicting:  serious  injury. 

The  cases,  ancient  and  modern,  where 
Ihis  distinction  has  been  regarded,  are 
numerous.  A  reference  to  a  few  of  them 
will  serve  all  the  purposes  of  a  mox'e  elab- 
orate discussion.  Lord  Holt  saj's: 
"Scandalous  matter  is  not  necessarj^  to 
make  a  libel.  It  is  enough  if  the  defend- 
ant induce  an  ill  opinion  to  be  had  of  the 
plaintiff,  or  to  make  him  contemptible 
and  ridiculous."  Cropp  v.  Tilnej',  3  Salk. 
220. 

To  say  of  a  man,  "He  is  a  dishonest 
man,"  is  not  actionable  without  special 
damage  alleged  and  proved;  but  to  pub- 
lish  so,  or  to  put  it  upon  posts,  is  actiona- 
ble.    Austin  V.  Culpeper,  Skin.  124. 

In  Villers  v.  Monsley.  2  Wils.  403,  the 
court  say:  "There  is  a  distinction  be- 
tween libels  and  words;  a  libel  is  punish- 
able both  criminally  and  by  action,  when 
speaking  the  words  would  not  be  punish- 
-able  either  way.  For  speaking  the  words 
'rogue'  and  'rascal'  of  any  one  an  action 
•n'ill  not  lie,  but  if  those  words  were  writ- 
ten and  published  of  any  one  an  action 
will  lie.  If  one  man  should  say  of  anoth- 
er that  he  has  the  itch,  without  more,  an 
action  would  not  lie;  but  if  he  should 
write  those  words  of  another,  and  pub- 
lish them  maliciously,  as  in  the  present 
case,  no  doubt  but   the  action    well  lies." 

In  another  case,  where  the  defendant 
had  applied  the  epithet  "villain  "to  the 
I)laintiff  in  a  letter  to  a  thi^d  person,  and 
the  plaintiff,  though  alleging,  failed  to 
prove,  any  special  damage,  tlie  court  or- 
<lered  judgment  for  the  plaintiff,  express- 
ing the  opinion  that  "any  words  written 
and  published,  throwing  contumely  on 
the  party,  are  actionable."  Bell  v.  Stone, 
1  Bos.  &  P.  331. 

In  one  of  Christian's  notes  to  Blackstone 
mention  is  made  of  a  case  where  a  young 
lady  recovered  £4.000  damages  for  reflec- 
tions upon  her  cliastitj',  i)ublished  in  a 
newspaper,  though  she  could  not,  under 
English  laws,  without  alleging  special 
damages,  such  as  loss  of  marriage  or  the 
like,  have  maintained  an  action  for  verbal 
slander  containing  the  grossest  aspersions 
upon  her  honor. 

In  J 'Anson  v.  Stuart,  1  Term  B.  748,  it 
was  held  that  to  print  of  any  person  that 
he  is  a  swindler  is  a  libel  and  actionable; 
for  it  is  not  necessary,  in  order  to  main- 
tain an  action  for  libel,  that  the  imputa- 
tion should  be  one  which,  if  spoken,  would 
be  actionable  as  slander. 

In  Thorley  v.  Kerry,  4  Taunt.  35.5,  the 
words  of  the  alleged  libel,  as  declared  on, 
were:  "1  pity  the  man  [meaning  the 
plaintiff]  who  can  so  far  forget  what  is 
due  to  himself  and  others  as,  under  the 
cloak  of  religion,  to  deal  out  envy,  hatred, 
malice,  nncharitableness,  and  falsehood." 
Mansfikld,  chief  justice  of  the  common 
pleas,  pronouncing  judgment  for  the 
•plaintiff  in  the  exchequer  chamber  at 
Easter  term,  1S12,  while  he  declared  him- 
eelf  personally  disjjosed  to  repudiate  the 
distinction  between  written  and  unwrit- 
ten scandal,  says:  "I  do  not  now  reca- 
pitulate the  cases,  but   we  cannot,  in  op- 


position to  them,  venture  to  lay  down  at 
this  day  that  no  action  can  be  main- 
tained for  any  words  written  for  which 
an  action  could  not  be  maintained  if 
spoken."  For  later  English  cases  main- 
taining the  same  doctrine,  see  McGregor 
V.  Thwaites,  3  Barn.  &  C.  24;  Clement  Y 
Chivis,  9  Barn.  &  C.  172;  Woodard  v. 
Dowsing,  2  Man.  &  R.  74;  Shipley  v.  Tod- 
hunter,  7  Car.  &  P.  6S0;  Pariniter  v. 
Coupland,  6  Mees.  &  \V.  105. 

The  American  cases  on  this  point  follow 
in  the  same  line  with  the  English.  Runkle 
V.  Meyer,  3  Yeates,  518;  McCorkle  v.  Binns, 

5  Bin. 345;  McClurg  v.  Ross,  Id.  21S;  Dextsr 
V.  Spear,  4  Mason,  115;  Dunn  v.  Winters,  2 
Humph.  512;  Clark  v.  Binnev,  2  Pick.  113, 
IIG;  Stow  V.  Converse,  3  Conn.  325;  Hill- 
house  V.  Dunning,  6  Conn.  391;  Shelton  v. 
Nance,  7  B.  Mon.  128;  Mayrant  v.  Richard- 
son, 1  Nott  &  McC.347;  Colby  V.Reynolds, 

6  Vt.  4S9. 

It  is  true  that  some  able  jurists  agree 
with  Mansfield,  C.  J.,in  doubting  wheth- 
er this  distinction  between  verbal  and 
written  or  printed  slander  is  well  founded 
in  principle,  while  they  recognize  the  force 
of  the  authorities  which  sustain  it.  Oth- 
ers maintain  it  upon  reason  as  well  as  au- 
thority. The  subject  is  discussed  with 
numerous  references  to  cases,  old  and  new, 
English  and  American,  in  a  note  to  Steele 
V.  Southwick,  in  1  Hare  &  W.  Lead.  Cas. 
(5th  Ed.)  123. 

Steele  v.  Southwick  was  an  early  case  in 
New  York,  decided  in  1812,  and  reported  in 
9  Johns.  214.  It  was  there  held  that  the 
published  words  complained  of,  if  they 
did  not  import  a  charge  of  perjury  in  the 
legal  sense,  were  nevertheless  libelous,  as 
holding  the  plaintiff  up  to  contempt  and 
ridicule,  as  regardless  of  his  obligations 
as  a  witness  and  unworthy  of  credit,  and 
that  they  were  consequently  actionable. 
We  concur  entirely  in  the  remarks  of  the 
court  that  "to  allow  the  press  to  be  the 
vehicle  of  malicious  ridicule  of  private 
character  would  soon  deprave  the  moral 
taste  of  the  community,  and  render  the 
state  of  societj-  miserable  and  barbarous. 
It  is  true  that  such  publications  are  also 
indictable  as  leading  to  a  breach  of  the 
peace,  but  the  civil  remedy  is  equally  fit 
and  appropriate."  We  do  not  mean  to 
say  that  every  indictable  libel  would  be 
a  good  foundation  for  a  civil  action. 

Attention  is  called  in  Stone  v.  Cooper,  2 
Denio,  293,  294.  to  one  class, — libels  upon 
the  dead. — as  being  one  where  no  private 
injurj'  would  probably  result  from  the 
publication.  It  may  perhaps  be  fairlj' 
held,  as  in  that  case,  that,  where  no  spe- 
cial damage  is  averred  or  proved,  "the 
nature  of  the  charge  itself  must  be  such 
that  the  court  can  legally  presume  he  has 
been  degraded  in  the  estimation  of  his  ac- 
quaintance or  of  the  public;  or  has  suf- 
fered some  loss,  either  in  his  property, 
character,  or  business,  or  in  his  domestic 
or  social  relations,  in  consequence  of  the 
publication."  Whether  a  mere  injury  to 
the  feelings,  resulting  from  the  publica- 
tion of  an  indictable  libel,  would  of  itself 
furnish  ground  for  the  maintenance  of  a 
civil  action,  we  need  not  no\^'  inquire. 

It  is  sufhrient  to  dispose  of  this  demur- 
rer to  hold  that,  in  an  action  for  Avritten 
or  printed    slander,    though    no    special 


12i) 


LAW  OF  TORTS. 


damage  is  alleged,  and  no  averments  of 
such  extrinsic  facts  as  might  be  requisite 
to  make  the  publication  in  question  im- 
port a  charge  of  crime  are  made,  the  ac- 
tion is  nevertheless  maintainable  if  the 
published  charge  is  such  as,  if  believed, 
would  naturally  tend  to  expose  the  plain- 
tiff to  public  hatred,  contempt,  or  ridicule, 
or  deprive  him  of  the  benefits  of  public 
confidence  and  social  intercoui-se.  It  can- 
not be  successfully  contended  that  the 
statements  alleged  in  this  writ  to  have 
been  published  by  the  defendant  in  his 
newspaper,  of  and  concerning  the  plain- 
tiff, would  not,  if  believed,  tend  strongly 
to  deprive  him  of  public  confidence,  and 
expose  him  to  public  hatred  and  con- 
tempt. It  is  not  necessary  to  inquire 
whether  the  pleader  has  not  carelessly  un- 
dertaken to  convey  bj  innuendo  what 
should  have  been  made  the  subject  of  dis- 
tinct averments  if  the  publication  was  to 
be  regarded  as  importing  a  charge  of  a 
criminal  offense  against  the  plaintiff. 
Exceptions  overruled. 

Appleton,  C.  J.,  and  Wai.tox,  Dick- 
ERSON,  Danforth,  and  Peters,  JJ.,  con- 
curred. 


(121  N.  Y.  199,  23  N.  E.  Rep.  1127.) 

Moore  v.  Francis  et  al. 

{Court  of  Appeals  of  New  York.    April  15, 1S90.) 

Libel — "Words  Affecting  Plaintiff  in  His  Oc- 
cupation— Imputing  Insanity. 
The  publication  in  a  newspaper  of  a  statement 
that  plaintiff,  employed  as  teller  in  a  bank,  be 
came  mentally  deranged  by  reason  of  overwork, 
and  that  while  in  that  condition  he  made  injuri- 
ous statements  regarding  the  bank's  affairs,  which 
caused  it  trouble,  is  libelous  per  se,  as  tending 
to  injure  him  in  his  employment. 

Appeal  from  supreme  court,  general 
term,  third  department. 

Action  bj' Amasa  R.  Moore  against  John 
M.Francis  and  others  for  libel.  Verdict 
for  defendants,  and  from  a  judgment  of 
the  general  term  affirming  the  judgment 
on  the  verdict,  and  an  order  denying  a 
motion  to  set  aside  the  same,  and  for  a 
new  trial,  plaintiff  now  appeals. 

.Uatthew  Hale,  for  appellant.  R.  A. 
Parmenter,  for  respondents. 

Andrews,  J.  The  alleged  libelous  publi- 
cation which  is  the  subject  of  this  action 
was  contained  in  the  Troy  Times  of  Sep- 
tember 1.5,  1882,  in  an  article  written  on 
the  occasion  of  rumors  of  trouble  in  the 
financial  condition  of  the  Manufacturers' 
National  Bank  of  Troy,  of  which  the 
plaintiff  was  at  the  time  of  the  publica- 
tion, and  for  18  years  prior  thereto  had 
been,  teller.  The  rumors  referred  to  had 
caused  a  "run"  upon  the  bank;  and  it  is 
claimed  by  the  defendants,  and  it  is  the 
fair  conclusion  from  the  evidence,  that 
tlie  primary  motive  of  the  article  was  to 
allaj'  public  excitement  on  the  subject. 
That  part  of  the  publication  charged  to 
be  libelous  is  as  follows  :  "Several  weeks 
ago  it  was  rumored  that  Amasa  Moore, 
the  teller  of  the  bank,  had  tendered  his 
resignation.  Rumors  at  once  began  to  cir- 
culate. A  reporter  inquired  of  Cashier 
Wellington  if  it  was  true  that  the  teller 
had  resigned,  and  received  in  reply  the 
answer  that  Mr.  Moore  was   on   his  vaca- 


tion. More  than  this  the  cashier  would 
not  say.  A  rumor  was  circulated  that 
Mr.  Moore  was  suffering  from  overwork, 
and  that  his  mental  condition  was  not  en- 
tirely good.  Next  came  reports  that 
Cashier  Wellington  was  financially  in- 
volved, and  that  the  bank  was  in  trouble. 
A  Times  reporter  at  once  sought  an  inter- 
view with  President  Weed  of  the  bank, 
and  found  him  and  Directors  Morrison, 
Cowee,  Bardwell,  and  others  in  consulta- 
tion. They  said  that  the  bank  was  entire- 
ly sound,  with  a  clear  surplus  of  $100,000; 
that  there  had  been  a  little  trouble  in  its 
affairs,  occasioned  by  the  mental  derange- 
ment of  Teller  Moore;  and  that  the  lat- 
ter's  statements,  when  he  was  probably 
not  responsible  for  what  he  said,  had 
caused  some  bad  rumors."  The  com- 
plaint is  in  the  usual  form,  and  charges 
that  the  publication  was  false  and  mali- 
cious, made  with  Intent  to  injure  the 
plaintiff  in  his  good  name  and  credit  in  his 
occupation  as  bank  teller,  and  to  cause  it 
to  be  believed  that,  by  reason  of  mental 
derangement,  he  had  become  incompetent 
to  discharge  his  duties,  and  had  caused 
injury'  to  the  bank,  etc.  The  court  on  the 
trial  was  requested  by  the  plaintiff's  coun- 
sel to  rule,  as  a  question  of  law,  that  the 
publication  was  libelous.  The  court  re- 
fused, but  submitted  the  question  to  the 
jury.  The  jury  found  a  verdict  for  the  de- 
fendants, and,  as  the  verdict  may  have 
proceeded  upon  the  finding  that  the  arti- 
cle was  not  libelous,  the  question  is  pre- 
sented whether  it  was  perse  libelous.  If 
it  was,  the  court  erred  in  leaving  the 
question  to  the  jury. 

It  is  the  settled  law  of  this  state  that, 
in  a  civil  action  for  libel,  where  the  publica- 
tion is  admitted,  and  the  words  are  unam- 
biguous and  admit  of  but  one  sense,  the 
question  of  libel  or  no  libel  is  one  of  law, 
which  the  court  must  decide.  Snyder  v. 
Andrew^s,  6  Barb.  48;  Matthews  v.  Beach, 
5  Sandf.  2.56;  Hunt  v.  Bennett,  19  N.  Y. 
173;  Lewis  v.  Chapman,  16  N.  Y.  369; 
Kingsbury  v.  Bradstreet  Co.,  116  N.  Y.  211, 
22  N.  E.  Rep.  365.  Of  course,  an  errorin  sub- 
mitting the  question  to  the  jury  would 
be  harmless  if  their  finding  that  the  publi- 
cation was  not  libelous  was  in  accordance 
with  its  legal  character.  The  import  of 
the  article,  so  far  as  it  bears  upon  the 
plaintiff,  is  plain  and  unequivocal.  The 
words  amount  to  a  distinct  affirmation 
—  First,  that  the  plaintiff  was  teller  of  the 
bank;  secozjc/,  that  while  acting  in  this 
capacity  he  became  mentally  deranged; 
third,  that  the  derangement  was  caused 
by  overAvork;  fourtli,  that  while  teller, 
and  suffering  from  this  mental  aliena- 
tion, he  made  injurious  statements  in  re- 
spect to  the  bank's  affairs  which  occa- 
sioned it  trouble.  The  casesof  actionable 
slander  were  defined  bj-^  Chief  Justice  Db 
Grey  in  the  leading  case  of  Onslow  v. 
Home,  3  Wils.  177;  and  the  classification 
made  in  that  case  has  been  generally  fol- 
lowed in  England  and  this  countiy.  Ac- 
cording to  this  classification,  slanderous 
words  are  those  which  (1)  import  a  charge 
of  some  punishable  crime;  or  (2)  impute 
some  offensive  disease  which  would  tend 
to  deprive  a  person  of  society;  or  (3> 
which  tend  to  injure  a  party  in  his  trade, 
occupation,   or    business;    or    (4)    which. 


SLANDER  AND  LIBEL. 


127 


have  produced  some  special  damage.  De- 
famatory words,  in  common  parlance,  are 
such  as  impute  some  moral  delinquency 
or  some  disreputable  conduct  to  the  per- 
son of  whom  they  are  spoken.  Actions 
of  slander,  for  the  most  part,  are  founded 
upon  such  imputations.  But  the  action 
lies  in  some  cases  where  the  words  impute 
no  criminal  offense;  where  no  attack  is 
made  upon  the  moral  character,  nor  any 
charge  of  personal  dishonor.  The  hrst  and 
larger  class  of  actions  are  those  brought 
for  the  vindication  of  reputation,  in  its 
strict  sense,  against  damaging  and  calum- 
nious aspersions.  The  other  class  fall,  for 
the  most  part  at  least,  within  the  third 
specification  in  the  opinion  of  Chief  Jus- 
tice De  Grey,  of  words  which  tend  to  in- 
jui'e  one  in  his  trade  or  occupation.  The 
case  of  words  affecting  the  credit  of  a 
trader,  such  as  imputing  bankruijtcy  or 
insolvency,  is  an  illustration.  The  action 
is  maintainable  in  such  a  case,  although 
no  fraud  or  dishonesty  is  charged,  and 
although  the  words  were  spoken  w^ithout 
actual  malice.  The  law  allows  this  form 
of  action  not  only  to  protect  a  man's 
character  as  such,  but  to  protect  him  in 
his  occupation,  also,  against  injurious 
imputations.  It  recognizes  the  right  of  a 
man  to  live,  and  the  necessity  of  labor, 
and  will  not  permit  one  to  assail  by 
words  the  pecuniary  credit  of  another, 
except  at  the  peril,  in  case  they  are  untrue, 
of  answering  in  damages.  The  principle 
is  clearlv  stated  by  Bayley,  J.,  in  Whit- 
taker  v.  Bradley,7Dowl.&R.649:  "What- 
ever words  have  a  tendency  to  hurt,  or 
are  calculated  to  prejudice,  a  man  who 
seeks  his  livelihood  by  any  trade  or  busi- 
ness, are  actionable."  Where  proved  to 
have  been  spoken  in  relation  thereto,  the 
action  is  supported;  and  unless  the  de- 
fendant shows  a  lawful  excuse  the  plain- 
tiff is  entitled  to  recover  without  allega- 
tion or  proof  of  special  damage,  because 
both  the  falsity  of  the  words  and  result- 
ing damage  are  presumed.  Craft  v.  Boite, 
1  Saund.  243*,  note:  Steele  v.  Southwick, 
1  Amer.  T^ead.  Cas.  1.35. 

The  auiborities  tend  to  support  the 
proposition  that  spoken  words  imputing 
insanity  are  actionable  per.se  when  spoken 
of  one  ill  his  trade  or  occupation,  but  not 
otherwise,  without  proof  of  special  dam- 
age. Morgan  v.  Lingen,  S  Law  T.  (N.  S.) 
SOU;  Joannes  v.  Burt,  6  Allen,  236.  The 
imputation  of  insanity  in  a  written  or 
printed  publication  is  a  fortiori  libelous 
where  it  would  constitute  slander  if  the 
words  were  spoken.  Written  words  are 
libelous  in  all  cases  where,  if  spoken,  they 
would  be  actionable;  but  they  may  be 
libelous  where  they  would  not  support  an 
action  for  oral  slander.  There  are  many 
definitions  of  "libel."  The  one  by  Hamil- 
ton in  his  argument  in  People  v.  Croswell, 
3  Johns.  Cas.  3.54,  viz.,  "a  censorious  or 
ridiculing  writing,  picture,  or  sign,  made 
with  mischievous  and  malicious  intent  to- 
wards government,  magistrates,  or  indi- 
viduals," has  often  been  referred  to  with 
approval.  But.  unless  the  word  "censori- 
ous "is  given  a  much  broader  signification 
than  strictly  belongs  to  it,  the  definition 
would  not  seem  to  comprehend  all  cases  of 
libelous  words.  The  word  "libel,"  as  ex- 
pounded in  the  cases,  is  not  limited  to  writ- 


ten or  printed  words  which  defame  a  man, 
in  the  ordinary'  sense,  or  which  impute 
blame  or  moral  turpitude,  or  which  criti- 
ciseor  censure  him.  In  the  case  before  re- 
ferred to,  words  affecting  a  man  injurious 
ly  in  his  trade  or  occupation  may  be  libel- 
ous although  they  convey  nc^  imputation 
upon  his  character.  Words,  says  Starkie, 
are  libelous  if  they  affect  a  person  in  his 
profession,  trade,  or  business,  "by  imput- 
ing to  him  any  kind  of  fraud,  dishonesty, 
misconduct,  incapacity,  unfitness,  or  want 
of  any  necessary  qualification  in  the  exer- 
cise thereof."  Starkie,  Sland.  &  L.  §  188. 
The  cases  of  libel  founded  upon  the  imputa- 
tion of  insanity  are  few.  The  declaration 
in  Morgan  v.  Lingen,  supra,  contained  a 
count  for  libel,  and  also  for  verbal  slander. 
The  alleged  libel  was  a  letter  written  by 
the  defendant  in  which  he  states  that  "he 
had  no  doubt  that  the  plaintiff's  mind  was 
affected,  and  that  seriously,"  and  also 
that  "she  had  a  delusion,"  etc.  It  ap- 
peared that  the  defendant  had  also  orally 
stated,  in  substance,  the  same  thing.  It 
was  claimed  that  the  writing  was  justi- 
fied. The  plaintiff  wasagoverness.  Mar- 
tin, B.,  in  summing  up  to  the  jury,  said 
that  "a  statement  in  writing  that  a  lady's 
mind  is  affected,  and  that  seriously,  is, 
without  explanation,  prima  facie  a  libel.  " 
In  respect  to  the  slander,  he  said  "he 
thought  there  was  no  evidence  of  any 
special  damage.  The  jury  must,  there- 
fore, consider  whether  the  defendant  ever 
intended  to  use  the  expressions  he  did  with 
reference  to  the  plaintiff's  profession  of 
governess."  In  Perkins  v.  Mitchell,  31 
Barb.  465,  it  was  held  to  be  libelous  to 
publish  of  another  "  that  he  is  insane,  and 
a  fit  person  to  be  sent  to  the  lunatic  asy- 
lum;" Emott,  J.,  saying:  "Upon  this 
point  the  case  is  clear."  Rex  v.  Harvey,  2 
Barn.&  C.  257,  was  an  information  for  libel 
for  publishing  in  a  newspaper  that  the 
king  "labored  under  mental  insanity,  and 
it  stated  that  the  writer  communicated 
the  fact  from  authority."  The  judge 
charged  that  the  publication  was  a  libel, 
and  the  charge  was  held  to  be  correct. 
The  foregoing  are  thf  only  cases  we  have 
noticed  upon  the  point  whether  a  written 
imputation  of  insanity  constitutes  a  libel. 
Several  of  the  text-writers  state  that  to 
charge  in  writing  that  a  man  is  insane  is 
libelous.  Add.  Torts.  16S;  TownsJi.  Sland. 
&  L.  §  177;  Starkie,  Sland.  &  L.  §  164;  Og- 
der,  Sland.  &  L.  p.  23. 

The  publication  now  in  question  is  not 
simplj'  an  assertion  that  the  plaintiff  is  or 
has  been  affected  with  "mental  derange- 
ment,"  disconnected  with  any  special  cir- 
cumstances. The  assertion  was  made  to 
account  for  the  trouble  to  which  the  bank 
had  been  subjected  by  reason  of  injurious 
statements  made  by  the  plaintiff  Avhile  in 
its  employment.  Words,  to  be  actionable 
on  the  ground  that  they  affect  a  man  in 
his  trad?  or  occupation,  must,  as  is  said, 
touch  him  in  such  trade  or  occupation; 
that  is,  they  must  be  shown,  directly  or 
by  inference',  to  have  been  spoken  of  him  in 
relation  thereto,  and  to  be  such  as  would 
tend  to  prejudice  him  therein.  Sanderson 
V.  Caldwell,  45  N.  Y.  405,  and  cases  cited. 
The  publication  did,  we  think,  touch  the 
plaintiff  in  respect  to  his  occupation  as 
bank  teller.    It  imputed  mental  derange- 


123 


LAW  OF  TORTS. 


ment  while  engaged  in  his  business  as 
teller,  which  affected  him  in  the  discharge 
of  his  duties.  The  words  conve^-ed  no  im- 
putation upon  the  plaintiff's  honesty,  fidel- 
ity, or  goueral  capacity.  They  attributed 
to  him  a  misfortune  brought  upon  him 
by  an  overzealous  application  in  his  em- 
ployment. While  the  statement  was  cal- 
culated to  excite  sympathy,  and  even  re- 
spect, for  the  plaintiff,  it  nevertheless  was 
calculated,  also,  to  injure  him  in  his  char- 
acter and  employment  as  a  teller.  On 
common  understanding,  mental  derange- 
ment has  usually  a  much  more  serious  sig- 
nificance than  mere  physical  disease. 
There  can  be  no  doubt  tiiat  the  imputa- 
tion of  insanity  against  a  man  employed 
in  a  position  of  trust  and  confidence,  such 
as  that  of  a  bank  teller,  whether  the  in- 
sanity is  temporary  or  not,  although  ac- 
companied by  the  explanation  that  it  was 
induced  by  overwork,  is  calculated  to  in- 
jure and  prejudice  him  in  that  employ- 
ment, and  especially  where  the  statement 
is  added  that,  in  consequence  of  his  con- 
duct in  that  condition,  the  bank  has  been 
involved  in  trouble.  The  dirpctors  of  a 
bank  would  naturally  hesitate  to  employ 
a  person  as  teller  whose  mind  had  once 
given  way  under  stress  of  similar  duties, 
and  run  the  risk  of  a  recurrence  of  the  mal- 
ady. The  publication  was,  we  think,  de- 
famatory, in  a  legal  sense,  although  it  im- 
puted no  crime,  and  subjected  the  plaintiff 
to  no  disgrace,  reproach,  or  obloquy,  for 
the  reason  that  its  tendency  was  to  sub- 
ject the  plaintiff  to  temporal  loss,  and  de- 
prive him  of  those  advantages  and  oppor- 
tunities as  a  member  of  the  community 
which  are  open  to  those  who  have  both  a 
sound  mind  and  a  sound  body.  The  trial 
judge,  therefore,  erred  in  not  ruling  the 
question  of  libel  as  one  of  law.  The  evi- 
dence renders  it  clear  that  noactual  injury 
to  the  plaintiff  was  intended  by  the  de- 
fendants; but  it  is  not  a  legal  excuse  that 
defamatory  matter  was  published  acci- 
dentally or  inadvertently,  or  with  good 
motives,  and  in  an  honest  belief  in  its 
truth. 

The  judgment  should  be  reversed,  and  a 
new  trial  granted. 

All  concur. 


(117  Mass.  539.) 

Homer  v.  E.ngei.hardt. 

(Supreme  Judicial  Court  of  Massachusetts. 
May  8, 1S75. ) 

Libel — Words  Affecting  Plaintiff  in  His  Busi- 
ness. 
The   publication   in  a  newspaper  of  a  notice  to 
the  public  that  plaintiff,  a   saloon-keeper,  to  get 


rid  of  a  just  claim  in  court,  set  up  as  a  defense 
an  existing  prohibitory  liquor  law,  under  which 
no  action  for  the  price  of  liquors  sold  in  violation 
thereof  could  be  maintained,  is  not  libelous,  as 
he  had  a  legal  right  to  make  such  defense. 

Appeal  from  superior  court. 

Action  of  tort  by  Valentine  Homer 
against  Michael  Engelhardt  for  libel.  The 
declaration  alleged  that  defendant  caused 
to  be  published  in  a  certain  newspaper, 
printed  in  the  German  language,  pub- 
lished in  Boston,  "a  false  and  malicious 
libel  concerning  plaintiff,  a  copy  of  which 
is  hereto  annexed,  as  follows:  '  Dem 
deutschen  Publicum  zur  Nachricht  dass 
derWirth  Valentine  Homer,  1863  Wash- 
ington Str.,  um  einer  gerechten  Forder- 
ung  zu  entgehen,  als  Vertheidigung  vor 
Gericht  das  bestehende  Liquor-Gesetz 
anfiihrte.  Wir  halten  es  fiir  unsere 
Pflicht  Rolche  Falle  zu  publiziren  um  Bier- 
brauer  und  Liquorhandler  zu  warnen. 
M.  ExGKLH.\RDT  &  Co,' — whlch,  translated 
into  the  English  language,  is  as  follows: 
'  Information  to  the  German  public.  The 
saloon-keeper,  Valentine  Homer,  No.  1S6-3 
Washington  street,  to  get  rid  of  a  just 
claim  in  court,  set  up  as  a  defense  the  ex- 
isting prohibitory  liquor  law.  We  feel  it 
our  duty  to  make  such  conduct  publicly 
known,  in  order  to  caution  beer-brewers 
and  liquor  dealers.  M.  Exgei.hakdt  & 
Co.'"  Defendant  demurred  to  the  dec- 
laration, on  the  ground  that  it  did  not 
state  a  legal  cause  of  action,  inasmuch  as 
it  contained  no  actionable  words  or  oth- 
er cause  of  action.  The  demurrer  was  sus- 
tained, and  judgment  ordered  for  defend- 
ant.    Plaintiff  appealed. 

J.  D.  Loug,  (S.  B.  Allen,  with  him,)  for 
plaintiff.     .4.  Rass,  for  defendant. 

ExDicoTT,  J.  No  action  can  be  main- 
tained in  this  commonwealth  for  the  price 
of  liquor  sold  in  violation  of  law.  St.  1S69, 
c.  415,  §  63.  If  such  action  is  brought, it  is 
the  right  of  the  defendant  to  set  up  in  his 
answer  this  provision  of  the  statute.  It 
is  a  perfectly  legitimate  and  legal  defense, 
and  stands  as  other  defenses  stand  which 
the  law  interposes  to  defeat  what,  under 
other  circumstances,  would  be  a  just  de- 
mand. This  publication  does  not  charge 
that  the  plaintiff  falsely,  or  even  unsuc- 
cessfully, set  up  as  a  defpnse  the  existing 
prohibitory  law.  The  gist  of  the  dam- 
age is  simply  that  he  did  set  up  such  a  de- 
fense. The  plaintiff  having  the  right  to 
make  this  defense,  it  is  not  libelous  to 
publisii  the  statement  that  he  had  done 
so.  The  dennirrer  was  rightly  sustained 
in  the  court  below. 

Judgment  affirmed. 


(See,  also,  Layton  v.  Harris,  3  Har.  [Del.]  406;  Bradley  v.  Cramer,  59  Wis.  809  18  N.  W.  Rep.  S6S; 
Stone  V.  Cooper,  2  Denio,  293;  Lindlev  v.  Horton,  27  Conn.  5S:  Barr  v.  Moore,  87  Pa.  St.  3S5;  Achorc 
V.  Piper,  66  Iowa,  694,  24  N.  W.  Rep.  513;  Zier  v.  HofBiu,  33  Minn.  66,  21  K.  W.  Rep.  862.) 


III.  MALICE  IN  LIBEL  AND  SLANDER. 


(4  Earn.  &  C.  247.) 

Brom.\ge  ft  ill.  v.  Prosser. 

(Court  of  King's  Bench.     Easter  Term,  1825.) 

1.  Slander — Malice. 

In  an  ordinary  case  of  libel  or  slander  (i  c.,  one 
which  is  not  a  case  of  privileged  communication) 
the  law  implies  such  malice  as  is  necessary  to 


maintain  the  action,  such  legal  malice  being  deem 
ed  to  exist  when  a  wrongful  act  is  done  intention- 
ally, without  just  cause  or  excuse.  It  is,  there- 
fore, not  proper  to  submit  this  question  of  malice 
in  such  cases  to  the  jurj-.  But  where  the  defama- 
tory words  are  published  on  a  privileged  occasion, 
and  are  therefore  primn  facie  excusable,  malice 
in  fact  must  be  proved  by  the  plaintiff  and  found 
by  the  jury  in  order  to  sustain  the  action. 


SLANDER  AND  LIBEL. 


129 


2.    SAJfE. 

In  an  action  for  slander  in  saying  that  plaintiff's 
bank  had  stopped,  it  appeared  that  in  answer  to  a 
question  whether  such  was  the  fact  defendant  had 
said  it  was  true ;  that  he  was  told  so ;  that  it  was 
so  reported.  The  judge  instructed  the  jury  that  if 
they  thought  the  words  were  not  spoken  mali- 
ciously the  defendant  ought  to  have  their  verdict. 
The  jury  having  found  a  verdict  for  the  defendant, 
held,  on  a  motion  for  a  new  trial,  that  this  instruc- 
tion, leaving  the  question  of  malice  to  the  jury,  was 
erroneous. 

Motion  for  a  new  trial. 

Action  for  slander  for  words  spoken  of 
plaintiffs  in  their  trade  and  business  as 
bankers.  At  the  trial  the  jury  found  a  ver- 
dict for  defendant.  A  rule  nisi  for  a  new 
trial  was  obtained  by  plaintiffs  on  the 
ground  that  the  jud^e  at  the  trial  improp- 
erly left  to  the  jury  the  question  of  malice. 

TF.  E.  Taunton  and  Mr.  Mniile,  showed 
cause.  Mr.  Campbell  and  G.  R  Croas,  in 
support  of  the  rule. 

Bayley,  J.  This  was  an  action  for 
filander.  The  plaintiffs  were  bankers  at 
Monmouth,  and  the  charge  was  that,  in 
answer  to  a  question  from  one  Lewis 
AVatkins,  whether  he,  the  defendant,  had 
said  that  the  plaintiffs' bank  had  stopped, 
th?  defendant's  answer  was,  "It  was  true; 
he  had  been  told  so.  "  The  evidence  was 
that  Watkins  met  defendant,  and  said,  "I 
hear  that  .you  say  the  bank  of  Bromage 
and  Snead,  at  Monmouth,  has  stopped. 
Is  it  true?"  Defendant  said,  "Yes,  it  is; 
I  was  told  so."  He  added,  "It  was  so  re- 
.  ported  at  Crickhowell,  and  nobody  would 
take  their  bills,  and  that  he  had  come 
to  town  in  consequence  of  it  himself." 
AVatkins  said,  "You  had  better  take  care 
what  you  say;  you  first  brought  the 
news  to  town,  and  told  Mr.  John  Thom- 
as of  it."  Defendant  replied.  "  I  was  told 
so."  Defendant  had  been  told  at  Crick- 
howell there  was  a  run  upon  plaintiffs' 
bank,  but  not  that  it  had  stopped,  or 
that  nobody  would  take  their  bills,  and 
what  he  said  went  greatly  beyond  what 
he  had  heard.  The  learned  judge  consid- 
ered the  words  as  proved,  and  he  does  not 
appear  to  have  treated  it  as  a  case  of 
privileged  communication;  but,  as  the 
defendant  did  not  appear  to  be  actuated 
by  any  ill  will  against  the  plaintiffs,  he 
told  the  jury  that,  if  tliey  thought  the 
words  were  not  spoken  maliciously, 
though  they  might  unfortunately  have 
produced  injury  to  the  plaintiffs,  the  de- 
fendant ought  to  have  their  verdict;  but, 
if  they  thought  them  spoken  maliciously, 
they  should  tind  for  the  plaintiff.  The  jury 
having  found  for  the  defendant,  the  ques- 
tion, upon  a  motion  for  a  new  trial,  was 
upon  the  propriety  of  this  direction. 

If,  in  an  ordinary  case  of  slander,  (not  a 
case  of  privileged  communication,)  want 
of  malice  is  a  question  of  fact  for  the  con- 
sideration of  a  jury,  the  direction  was 
riglit;  but  if,  in  such  a  case,  the  law  im- 
plies such  malice  as  is  necessarj^  to  main- 
tain the  action,  it  is  the  duty  of  the  judge 
to  withdraw  the  question  of  malice  from 
the  consideration  of  the  jury;  and  it  ap- 
pear.'^ to  us  that  the  direction  in  this  case 
was  wrong.  That  malice,  in  some  sense,  is 
the  gist  of  the  action,  and  that,  therefore, 
the  manner  and  occasion  of  speaking  the 
words  is  admissible  in  evidence  to  show 
CHASE — 9 


they  were  not  spoken  with  malice,  Is  said 
to  have  been  agreed  (either  by  all  the 
judges,  or,  at  least,  by  the  four  who 
thought  the  truth  might  be  given  in  evi- 
dence on  the  general  issue)  in  Smith  v. 
Richardson,  Willes.L'4;  and  it  is  laid  down 
1  Com.  Dig.  tit.  "Action  upon  the  Case 
for  Defamation,"  g  5,  that  the  declara- 
tion must  show  a  malicious  intent  in  the 
defendant;  and  there  are  some  other  very 
useful  elementary  books  in  which  it  is  said 
that  malice  is  the  gist  of  the  action  ;  but 
in  what  sense  the  words  "malice "or  "ma- 
licious intent"  are  here  to  be  understood, 
whether  in  the  popular  sense,  or  in  the 
sense  the  law  puts  upon  those  expres- 
sions, none  of  these  authorities  state. 
"Malice,"  in  common  acceptation,  means 
ill  will  against  a  person;  but  in  its  legal 
sense  it  means  a  wrongful  act,  done  in- 
tentionally, without  just  cause  or  excuse. 
If  I  give  a  perfect  stranger  a  blow  likely  to 
produce  death,  I  do  it  of  malice,  because 
I  do  it  intentionally,  and  without  just 
cause  or  excuse.  If  I  maim  cattle  with- 
out knowing  whose  they  are,  if  I  pois(jn  a 
fishery  without  knowing  the  owner,  I  do 
it  of  malice,  because  it  is  a  wrongful  act, 
and  done  intentionally.  If  1  am  arraigned 
for  felony,  and  willfully  stand  mute,  I  am 
said  to  do  it  of  malice,  because  it  is  inten- 
tional, and  without  just  cause  or  excuse. 
Russ. Crimes,  614,  note  1.  And  if  I  traduce 
a  man  whether  I  know  him  or  not,  and 
whether  I  Intend  to  do  him  an  injury  or 
not,  I  apprehend  the  law  considers  it  as 
done  of  malice,  because  it  is  wrongful  and 
intentional.  It  equally  works  an  injury 
whether  I  meant  to  produce  an  injury  or 
not,  and,  if  I  had  no  legal  excuse  for  the 
slander,  why  is  he  not  to  have  a  remedy 
against  nie  for  the  injury  it  produces? 
And  I  apprehend  the  law  recognizes  the 
distinction  between  these  two  descrip- 
tions of  malice,  malice  in  fact  and  malice  in 
law,  in  actions  of  slander.  In  an  ordinary 
action  for  words,  it  is  sufficient  to  charge 
that  the  defendant  spoke  them  falsely  ;  it  is 
not  necessary  to  state  that  they  were  spok- 
en maliciously.  This  is  so  laid  down  in 
Style.  392,  and  was  adjudged  upon  error  in 
Mercer  v.  Sparks,  Noy,  35.  The  objection 
there  was  that  the  words  were  not 
charged  to  have  been  spoken  maliciously, 
but  the  court  answered  that  the  words 
were  themselves  malicious  and  slanderous, 
and  therefore  the  judgment  was  affirmed. 
But  in  actions  for  such  slander  as  is  prima 
facie  excusable  on  account  of  speaking  or 
writing  t,  as  in  the  case  of  servants' 
charactei's,  confidential  advice,  or  com- 
munications to  persons  who  ask  it,  or 
have  a  right  to  expect  it,  malice  in  fact 
must  be  proved  by  the  plaintiff;  and  in 
Edmonson  v.  Stevenson,  Bull.  N.  P.  8, 
Lord  Mansfield  takes  a  distinction  be- 
tween these  and  ordinary  actions  of  slan- 
der. In  Weatherston  v.  Hawkins,  1 
Term  K.  110,  where  a  master,  who  had 
given  a  servant  a  character  which  pre- 
vented his  being  hired,  gave  his  brother- 
in-law,  who  applied  to  him  upon  the  sub- 
ject, a  detail  by  letter  of  certain  instances 
in  which  the  servant  had  defrauded  him. 
Wood,  who  argued  for  the  plaintiff,  in- 
sisted that  this  case  did  not  differ  from  the 
case  of  common  libels:  that  it  had  the 
two  essential    ingredients,    slander    and 


130 


LAW  OF  TORTS. 


falsehood;  that  it  was  not  necessary  to 
prove  express  malice;  if  the  matter  is  slan- 
derous, malice  is  implied,  it  is  sufficient  to 
prove  publication;  the  motives  of  the 
part3'  publishing  are  never  goneintf) ;  and 
that  the  same  doctrine  held  in  action  for 
words, — no  express  malice  need  be  proved. 
Lord  Mansfield  said  the  general  rules  are 
laid  down  as  Mr.  Wood  has  stated,  but 
to  evei'y  libel  there  may  be  an  implied  jus- 
tification from  the  occasion.  So  as  to  the 
words,  instead  of  the  plaintiff's  showing 
it  to  be  false  and  malicious,  it  appears 
to  be  incidental  to  the  application  by  the 
intended  master  for  the  character;  and 
BuLLER,  J.,  said  this  is  an  exception  to 
the  general  rule,  on  account  of  the  occa- 
sion of  writing.  In  actions  of  this  kind, 
the  plaintiff  must  prove  the  words  "mali- 
cious" as  well  as  "false."  Bui.i.er,  J.,  re- 
peats in  Pasley  v.  Freeman,  3  Term  R.  61, 
that,  for  words  spoken  confidentially,  up- 
on advice  asked,  no  action  lies,  unless  ex- 
press malice  can  be  proved.  So  in  Har- 
grave  v,  Le  Breton,  4  Burrows,  L'425,  Lord 
Mansfield  states  that  no  action  can  be 
maintained  against  a  master  for  the  char- 
acter he  gives  a  servant,  unless  there  are 
extraordinary'  circumstances  of  express 
malice;  but  in  an  ordinarj  action  for  a 
libel  for  words,  though  evidence  of  malice 
may  be  given  to  increase  the  damages,  it 
never  is  considered  as  essential,  nor  is 
there  any  instance  of  a  verdict  for  a  de- 
fendant on  a  ground  of  want  of  malice. 
Numberless  occasions  must  have  occurred, 
(particularly  in  cases  where  a  defendant  on- 
ly repeated  what  he  had  heard  before,  but 
without  naming  theauthor,)  upon  which, 
If  that  were  a  tenable  ground,  verdicts 
"would  have  been  sought  for  and  obtained, 
and  the  absence  of  any  such  instance  is  a 
proof  of  what  has  been  the  general  and 
universal  opinion  upon  the  point.  Had 
it  been  noticed  to  the  jury  how  the  de- 
fendant came  to  speak  the  words,  and  had 
it  been  left  to  them,  as  a  previous  ques- 
tion, whether  the  defendant  understood 
Watkins  as  asking  for  information  for  his 


own  guidance,  and  that  the  defendant 
spoke  what  he  did  to  Watkins  merely  by 
way  of  honest  advice  to  regulate  his  con- 
duct, the  question  of  malice  in  fact  would 
have  been  proper  as  a  second  question  to 
the  jury,  if  their  minds  were  in  favor  of 
the  defendant  upon  the  first;  but  as  the 
previous  question  I  have  mentioned  was 
never  put  to  the  jury,  but  this  was  treat- 
ed as  an  ordinary  case  of  slander,  we  are 
of  opinion  that  the  question  of  malice 
ought  not  to  have  been  left  to  the  jury. 
It  was,  however,  pressed  upon  us  with 
considerable  force  that  we  ought  not  to 
grant  a  new  trial  on  the  ground  that  the 
evidence  did  not  support  any  of  the  counts 
in  the  declaration,  but,  upon  carefully  at- 
tending to  the  declaration  and  the  evi- 
dence, we  think  we  are  not  warranted  in 
saying  there  was  no  evidence  to  go  to  the 
jury  to  support  the  declaration;  and,  had 
the  learned  judge  intimated  an  opinion 
that  there  "U'as  no  such  evidence,  the 
plaintiff  might  have  attempted  to  supply 
the  defect.  We  therefore  think  that  we 
cannot  properly  refuse  a  new  trial  upon 
the  ground  that  the  result  upon  the  trial 
might  have  been  doubtful.  In  granting 
a  new  trial,  however,  the  court  does  not 
mean  to  say  that  it  may  not  bo  proper  to 
put  the  question  of  malice,  as  a  question 
of  fact  for  the  consideration  of  the  jury; 
for  if  the  jury  should  think  that  when 
Watkins  asked  his  question  the  defendant 
understood  it  as  asked,  in  order  to  ob- 
tain information  to  regulate  his  own  con- 
duct, it  will  range  under  the  cases  of  privi- 
leged communication,  and  the  question  of 
malice  in  fact  will  then  be  a  necessary 
part  of  the  jury's  inquiry;  but  it  does 
not  appear  that  it  was  left  to  the  jury  in 
this  case  to  consider  whether  this  was  un- 
derstood by  the  defendant  as  an  applica- 
tion to  him  for  advice,  and,  if  not,  the 
question  of  malice  was  improperly  left  to 
their  consideration.  We  are  therefore  of 
opinion  that  the  rule  for  a  new  trial  must 
be  absolute. 
Rule  absolute. 


IV.  PUBLICATION. 


(13  Gray,  304.) 

Sheffill  et  ux.  v.  Van  Deusen  et  ux. 

{Supreme  Judicial  Court  of  Massachusetts. 
Sept.  Term,  1859.) 

Slander  —  Publication  of  Defamatory  Words. 
No  action  can  be  maintained  for  the  speaking 
of  defamatory  words  to  the  person  of  whom  they 
are  spoken  only,  no  one  else  being  present  or 
within  hearing.  That  they  were  spoken  in  a 
public  place  is  immaterial. 

Exceptions  from  court  of  common  pleas. 

Action  of  tort  by  Hiram  Sheffill  and  wife 
against  George  J.  Van  Deusen  and  wife  for 
Blander.  The  judge  before  whom  the  case 
was  tried  signed  a  bill  of  exceptions,  as 
follows:  "The  words  claimed  to  have  been 
slanderous  were  spoken,  if  at  all,  at  the 
dwelling-house  of  the  defendants,  and  in 
that  part  thereof  called  the  'bakery,' 
where  bread  and  other  articles  were  sold 
to  customers:  and   were  spoken  by  Mrs. 


Van  Detisen  to  Mrs.  Shefflll.  The  defend- 
ants asked  the  court  to  instruct  the  jury 
that  if  the  words  alleged  in  the  plaintiffs' 
declaration  were  spoken  to  Mrs.  Sheffill, 
and  no  other  person  but  Mrs.  Shefiill  and 
Mrs.  Van  Deusen  were  present,  there  was 
no  such  publication  of  the  words  as  would 
maintain  the  action.  The  court  declined 
so  to  instruct,  but  did  instruct  the  jury 
that,  if  the  words  were  publicly  uttered 
in  the  bakery  of  the  defendants,  there  was 
a  sufficient  publication,  though  the  plain- 
tiff has  not  shown  that  any  other  person 
was  present,  at  the  time  they  were  S{)ok- 
en,  but  Mrs.  Sheffill  and  Mrs.  Van  Deusen. 
The  jury  returned  a  verdict  for  the  plain- 
tiffs, and  the  defendants  except." 

W.K.  Peck,  for  plaintiffs.   M.  Wilcox,  for 
defendants. 

Bigelow,  J.    Proof  of  the  publication  of 
the  defamatory  words  alleged  in  the  dec 


SLANDER  AND  LIBEL. 


131 


laration  was  essential  to  the  maintenance 
of  this  action.  Slander  consists  in  utter- 
ing words  to  the  injury  of  a  person's  repu- 
tation. No  such  injury  is  done  when  the 
words  are  uttered  only  to  the  person  con- 
cerning whom  they  are  spoken,  no  one 
else  being  present  or  within  hearing.  It 
is  damage  done  to  character  in  the  opin- 
ion of  other  men,  and  not  in  a  party's  self- 
estimation,  which  constitutes  the  mate- 
rial element  in  an  action  for  verbal  slan- 
der. Even  in  a  civil  action  for  libel,  evi- 
dence that  the  defendant  wrote  and  sent  a 
sealed  letter  to  the  plaintiff,  containing 
defamatory  matter,  was  held  insufficient 
proof  of  publication;  although  it  would 
be  otherwise  in  an  indictment  for  libel, 
because  sucli  writings  tend  directly  to  a 
breach  of  the  peace.  So,  too,  it  must  be 
shown  that  the  words  were  spoken  in  the 
presence  of  some  one  who  understood 
them.  If  spoken  in  a  foreign  language, 
which  no  one  present  understood,  no  ac- 
tion will  lie  therefor.  Edwards  v.  Woot- 
on,  12  Coke,  35;  Hickes'  Case,  Poph.  139, 
and  Hob.  215;  Wheeler  and  Appleton's 
Case,  Godb.  340;  Phillips  v.  Jansen,  2  Esp 
624;  Lyle  v.  Clason,  1  Caines,  581;  Ham. 
N.  P.  2S7.  It  is  quite  immaterial,  in  the 
present  case,  that  the  words  were  spoken 
in  a  public  place.  The  real  question  for 
the  jury  was,  were  they  so  spoken  as  to 
have  been  heard  by  a  third  person?  The 
defendants  were  therefore  entitled  to  the 
instructions  for  which  they  asked. 
Exceptions  sustained. 


([1891]  1  Q.  B.  524.) 

Pullman  et  al.  v.  "Walter  Hill  &  Co.. 
Limited. 

{Coun  of  Appeal.    Dec.  19,  1890.) 

Libel — Publication. 

In  an  action  for  libel  it  appeared  that  the  al- 
leged libel  was  contained  in  a  letter  respecting 
plaintiffs,  two  of  the  members  of  a  partnership, 
written  on  behalf  of  defendants,  a  limited  com- 
pany, by  their  managing  director,  and  sent  by 
mail  in  an  envelope  addressed  to  the  firm ;  the 
writer  not  knowing  that  there  were  other  part- 
ners in  the  firm.  The  letter  was  dictated  by  him 
to  a  clerli,  who  took  down  the  words  in  short- 
hand, and  then  wrote  them  out  in  full  by  means 
of  a  type- writing  machine;  and  the  letter  thus 
written  was  copied  by  an  ofQce-boy  in  a  copying- 
press.  When  it  reached  its  destination,  it  was 
opened  by  a  clerk  of  the  firm,  in  the  ordinary 
course  of  business,  and  was  read  by  two  other 
clerks  of  the  firm.  Held,  that  there  was  a  pub- 
lication of  tne  letter,  both  to  defendants'  clerks 
and  to  plaintiffs'  clerks,  and  that  neither  was  on  a 
privileged  occasion. 

Motion  for  new  trial. 

Action  for  libel.  At  the  trial  It  ap- 
peared that  plaintiffs  were  members  of  a 
partnership  firm  of  R.  &  J.  Pullman,  in 
which  there  were  three  other  partners. 
The  place  of  business  of  the  firm  was  No. 
17  Greek  street,  Soho.  The  plaintiffs  were 
the  owners  of  some  propertj"  in  the  Bor- 
ough road,  which  they  had  contracted, 
in  1887,  to  sell  to  Messrs.  Day  <Sr,  Martin. 
The  plaintiffs  remained  in  possession  of 
the  property  for  some  time,  and  agreed 
to  let  a  hoarding,  wliich  was  erected 
upon  the  property,  at  a  rent  to  the 
defendants,  wlio  were  advertising  agents, 
for     the    display   of     advertisements.     In 


1889  a  dispute  arose  between  the  plain- 
tiffs and  Day  &  Martin,  who  were  building 
upon  the  land,  as  to  which  of  the  two 
were  entitled  to  the  rent  of  the  hoarding; 
and  on  September  14,  1889,  the  defendants, 
after  some  prior  correspondence,  wrote 
the  following  letter:  "  Messrs.  Pullman  & 
Co.,  17  Greek  St.,  Soho.  Ke  Boro'  Road. 
Dear  Sirs:  We  must  call  your  serious  at- 
tention to  this  matter.  Thebuilders  state 
distinctly  that  you  had  no  right  to  this 
money  whcitever;  consequently  it  has  been 
obiaiued  from  us  under  false  pretenses. 
We  await  your  reply  by  return  of  post. 
Yours, faitlifully,  [Signed]  AA'alterHill 
«&  Co.,  Limited.  "  This  letter  was  dictat- 
ed by  the  defendants'  managing  director 
to  a  short-hand  clerk,  who  transcribed  it 
by  a  tj-pe-writing  machine.  The  type- 
written letter  was  then  signed  by  the 
managing  director,  and,  having  been 
press-copied  by  an  office-boy.  was  sent  by 
post  in  an  envelope  addressed  to  "Messrs. 
Pullman  &  Co.,  17  Greek  street,  Soho." 
The  defendants  did  not  know  that  there 
were  any  other  partners  in  the  firm  besides 
the  plaintiffs.  The  letter  was  opened  by 
a  clerk  of  the  firm,  in  the  ordinary  course 
of  business,  and  was  read  by  two  other 
clerks.  The  plaintiffs  brought  this  action 
for  libel.  The  defendants  contended  that 
there  was  no  publication,  and  that,  if  there 
were,  the  occasion  was  privileged.  The 
learned  judge  held  that  there  was  no  pub- 
lication, that  the  occasion  was  privileged, 
and  that  there  was  no  evidence  of  malice. 
He  therefore  nonsuited  the  plaintiffs,  and 
they  moved  for  a  new  trial. 

Mr.  Lockw'ood,  Q.  C,  and  Mr.  Oswald, 
for  the  motion.  Mr.  Murpby,  Q.  C,  and 
R.  M.  Bray,  opposed. 

EsHER,  M.  R.  Two  points  were  decided 
by  the  learned  judge:  (1)  That  there  had 
been  no  publication  of  the  letter  which  is 
alleged  to  be  a  libel;  (2)  that,  if  there  had 
been  publication,  the  occasion  was  priv- 
ileged. The  question  whether  the  letter 
is  or  is  not  a  libel  is  for  the  jury,  if  it  is 
capable  of  being  considered  an  imputation 
on  the  character  of  the  plaintiffs.  If  there 
is  a  new  trial,  it  will  be  open  to  the  jury 
to  consider  whether  there  is  a  libel,  and 
what  the  damages  are.  The  learned  judge 
withdrew  the  case  from  the  jury. 

The  first  question  is  Avhether,  assuming 
the  letter  to  contain  defamatory  matter, 
there  has  been  a  publication  of  it.  What 
is  the  meaning  of  "publication?"  The 
making  known  the  defamatory  matter 
after  it  has  been  written  to  some  person 
other  than  the  person  of  whom  it  is  writ- 
ten. If  the  statement  is  sent  straight  to 
the  person  of  whom  it  is  written,  there  is 
no  publication  of  it;  for  you  cannot  pub- 
lish a  libel  of  a  man  to  himself.  If  there 
were  no  publication,  the  question  wheth- 
er the  occasion  was  privileged  does  not 
arise.  If  a  letter  is  not  communicated  to 
any  one  but  the  person  to  whom  it  is 
written,  there  is  no  publication  of  it.  And 
if  the  writer  of  a  letter  locks  it  up  in  his 
own  desk,  and  a  thief  comes  and  breaks 
open  the  desk  and  takes  away  the  letter, 
I  should  say  that  would  not  be  a  publica- 
tion. If  the  writer  of  a  letter  shows  it  to 
his  own  clerk  in  order  that  the  clerk  may 


132 


LAW  OF  TORTS. 


copy  it  for  him,  is  tbat  a  publication  of 
the  letter?  Certainly  it  is  showing  it  to  a 
third  person.  The  writer  cannot  say,  to 
the  person  to  whom  the  letter  is  addressed, 
"I  have  shown  it  to  you,  and  to  no  one 
else."  I  cannot,  therefore,  feel  any  doubt 
that,  if  the  writer  of  a  letter  shows  it  to 
any  person  otherthan  the  person  to  whom 
it  is  written,  he  publishes  it.  If  he  wishes 
not  to  publish  it,  he  must,  so  far  as  he 
possibly  can,  keep  it  to  himself,  or  he  must 
send  it  himself  straight  to  the  person  to 
whom  it  is  written.  There  was  therefore  in 
this  case  a  publication  to  the  type-writer. 

Then  arises  the  question  of  privilege, 
and  that  is  whether  the  occasion  on 
which  the  letter  was  published  was  a  priv- 
ileged occasion.  An  occasion  is  privileged 
when  the  person  who  makes  the  commu- 
nication has  a  moral  duty  to  make  it  to 
the  person  to  whom  he  does  make  it,  and 
the  person  who  receives  it  has  an  interest 
in  hearing  it.  Both  these  conditions  must 
exist  in  order  that  the  occasion  may  be 
privileged.  An  ordinary  instance  of  a  priv- 
ileged occasion  is  in  the  giving  the  charac- 
ter of  a  servant.  It  is  not  the  legal  duty 
of  the  master  to  give  a  character  to  the 
servant,  but  it  is  his  moral  duty  to  do  so ; 
and  the  person  who  receives  the  character 
has  an  interest  in  having  it.  Therefore 
the  occasion  is  privileged,  because  the 
one  person  has  a  dutj'  and  the  other  lirs 
an  interest.  The  privilege  exists  as 
against  the  person  who  is  libeled;  it  is 
not  a  question  of  privilege,  as  between  the 
person  who  makes  and  the  person  who  re- 
ceives the  communication.  The  privilege 
is  as  against  the  person  who  is  libeled. 
Can  the  communication  of  the  libel  by  the 
defendants  in  the  present  case  to  the  type- 
writer be  brought  within  the  rule  of  priv- 
ilege as  against  the  plaintiffs,  the  persons 
libeled?  What  interest  had  the  type- 
writer in  hearing  or  seeing  the  communi- 
cation? Clearly,  she  had  none.  There- 
fore the  case  does  not  fall  within  the  rule. 

Then,   again,  as  to  the  publication  at 


the  other  end,— I  mean  when  the  letter 
was  delivered.  The  letter  was  not  di- 
rected to  the  plaintiffs  in  their  individual 
capacity;  it  was  directed  to  a  firm  of 
w^hich  they  were  members.  Thu  senders 
of  the  letter  no  doubt  believed  that  it 
would  go  to  the  plaintiffs,  but  it  was  di- 
rected to  a  firm.  When  the  letter  arrived 
it  was  opened  by  a  clerk  in  the  employ- 
ment of  the  plaintiffs'  firm,  and  was  seen 
by  three  of  the  clerks  in  their  oflSce.  If 
the  letter  had  been  directed  to  the  plain- 
tiffs in  their  private  capacity,  in  all  proba- 
bility it  would  not  have  been  opened  by  a 
clerk.  But  mercantile  firms,  and  large 
tradesmen  generally,  depute  some  clerk  to 
open  business  letters  addressed  to  them. 
The  sender  of  the  letter  had  put  it  out  of 
his  own  control,  and  he  had  directed  it  in 
such  a  manner  that  it  might  possibly  be 
opened  by  a  clerk  of  the  firm  to  which  it 
was  addressed.  I  agree  that,  under  such 
circumstances,  there  was  a  publication  of 
the  letter  by  the  sender  of  it,  and  in  this 
case,  also,  the  occasion  was  not  privileged, 
for  the  same  reasons  as  in  the  former  case. 
There  were  therefore  two  publications  of 
the  letter,  and  neither  of  them  was  privi- 
leged. And  there  being  no  privilege,  no 
evidence  of  express  malice  was  required; 
the  publication  of  itself  implied  malice.  I 
think  the  learned  judge  was  misled.  I  do 
not  think  that  the  necessities  or  the  luxuries 
of  business  can  alter  thelaw  of  England.  If 
a  merchant  wishes  to  write  a  letter  con- 
taining defamatory  matter,  and  to  keep  a 
copy  of  the  letter,  he  had  better  make  the 
copy  himself.  If  a  company  have  deputed 
a  person  to  write  a  letter  containing  libel- 
ous matter  on  their  behalf,  they  will  be 
liable  for  his  acts.  He  ought  to  wnite 
such  a  letter  himself,  and  to  copy  it  him- 
self, and,  if  he  copies  it  into  a  book,  he 
ought  to  keep  the  book  in  his  own  custody. 
I  think  there  ought  to  be  a  new  trial. 

Lopes,  L.  J.,  and  Kay,  L.  J.,  concurred. 
Order  for  new  trial. 


(See,  also,  Wennhak  v.  Morgan,  20  Q.  B.  Div.  635;  Pittard  v.  Oliver,  [1891,]  1  Q.  B.  474;  Bacon  v. 
Railroad  Co.,  55  Mich.  224,  21  N.  W.  Rep.  324;  Young  v.  Clegg,  93  Ind.  371;  Spaits  v.  Poundstone,  87 
Ind.  523;  Marble  v.  Chapin,  132  Mass.  225;  Mielenz  v.  Quasdorf,  68  Iowa,  726,  2S  N.  W.  Rep.  41;  Sproul 
V.  Pillsbury,  72Me.  20.) 


V.  DEFENSE  OF  "JUSTIFICATION." 


(19  Kan.  417.) 

Castle  v.  Houston. 

(Supreme  Court  of  Kansas.     July  Term,  1877.) 

1.  Libel — Justification. 

In  civil  actions  for  libel,  proof  of  the  truth  of 
the  matter  charged  as  defamatory  is  a  complete 
justification,  without  showing  that  it  was  pub- 
lished with  good  motives  and  for  justifiable  ends. 

2.  Same — Coxstitutioxal  Provisiox. 

The  constitution  of  Kansas  provides  (Bill  of 
Rights,  §  11)  that,  "in  all  civil  or  criminal  ac- 
tions for  libel,  the  truth  may  be  given  in  evidence 
to  the  jury,  and,  if  it  shall  appear  that  the  al- 
leged libelous  matter  was  published  for  justi- 
fiable ends,  the  accused  shall  be  acquitted. " 
Held,  in  construction  of  this  provision,  in  view 
of  the  former  rule  of  law,  that  proof  of  the  truth 
of  the  matter  charged  as  defamatory  was  a  com- 
plete justification  in  a  civil  action  for  libel;  and 
that  proof  that  the  matter  was  published  for  jus- 
tifiable  ends  in   order  that  "the  accused  party 


shall  be  acquitted, "  was  limited  to  criminal  prose- 
cutions. 

Error  from  district  court,  Leavenworth 
county. 

Action  for  libel.  A  verdict  for  plaintiff, 
on  trial  in  the  district  court,  was  set  aside 
by  that  court  on  motion,  and  a  new  trial 
granted.  From  the  order  granting  the 
new  trial  plaintiff  appealed,  and  brought 
the  case  to  the  supreme  court  on  error. 

Byron  Sherry  and  Scott  Ash  ton,  for 
plaintiff.     T.  A.  Hurd,  for  defendant. 

HoRTON,  C.  J.  This  was  an  action  com- 
menced in  the  district  covirt  of  Leaven- 
worth county  to  recover  damages  for  libel. 
The  petition  alleges,  in  substance,  that 
the  defendant  was  editor,  pi-oprietor,  and 
publisher  of  the  Leavenworth  Daily  Com- 
mercial, a  newspaper  printed  in  the  city  of 


SLANDER  AND  LIBEL. 


133 


Leavenworth,  and  that  on  the  20th  of 
Januaiy,  1875,  there  was  published  in  said 
paper,  of  and  concerning  the  plaintiff,  a 
certain  false  and  malicious  libel,  in  words 
as  follows,  to-wit:  "The  insurance  de- 
partment of  our  state  will  in  all  probabili- 
ty be  subject  to  a  thorough  investigation, 
as  a  bill  has  already-  been  introduced  into 
the  senate  to  investigate.  This  is  rignt. 
Everj'  insurance  company  in  the  state  is 
willing  an  investigation  be  had.  Mr.  Rus- 
sell, ex-superindent,  invites  it,  and  the  pres- 
ent superintendent  is  anxious  for  the  same. 
There  is  a  cadaverous  looking  individual 
of  Leavenworth  loafing  around  here  who 
seems  exceedingly  anxious  for  an  investi- 
gation, in  hopes  that  the  superintendent 
will  be  done  away  with,  and  the  depart- 
ment presided  over  by  the  auditor.  A 
clerkship  in  the  dim  distance  makes  him 
enthuse.  I  cannot  blame  Castle  much, 
knowing  that  board  and  other  bills  too 
numerous  to  mention  have  been  pressing 
him  for  some  time,  and  then,  doubtless, 
the  Northwestern  Life  would  be  glad  to 
hear  from  him,  as  he  was  published  as  a 
defaulter  to  that  company.  He  is  one  of 
the  most  promising  individuals  (to  his 
landlords)  I  know  of.  and  the  cry  of  fraud 
from  such  a  completely  plaj'ed-out  insur- 
ance agent  has  but  little  bearing  with  an 
intelligent  body  of  legislators.  If  hiscaliber 
was  as  large  as  his  bore,  he  would  be  a 
success.    J.4.CK." 

In  answer  to  the  petition,  defendant  set 
up  three  defenses :  First,  an  admission 
that  the  article  complained  of  was  pub- 
lished in  defendant's  paper  of  and  concern- 
ing the  plaintiff,  but  denied  that  the  same 
was  published  with  malice;  second,  that 
defendant  had  no  personal  knowledge  of 
the  publication  of  the  article  at  the  time 
of  its  publication,  with  the  further  allega- 
tion that  the  several  matters  and  things 
in  the  articlecomplained  of  as  defamatory 
were  true,  and  published  for  justifiable  ends 
and  purposes ;  and.  third,  a  general  denial. 
To  the  answer  plaintiff  filed  a  reply,  denj'- 
ing  generally,  save  and  except  what  was 
admitted,  all  the  allegations  in  the  an- 
swer. When  the  case  came  on  for  trial,  it 
was  submitted  to  a  jury,  and  plaintiff  ob- 
tained a  verdict  of  ^1,250:  whereupon  de- 
fendant gave  notice  of  motion  for  a  new 
trial,  which  was  filed,  and,  after  being 
argued,  was  by  the  court  sustained,  upon 
the  ground  that  the  court  had  erred  in  its 
instructions  to  the  jurj'.  The  plaintiff  ex- 
cepted, and  has  brought  the  case  here  for 
review. 

it  appears  from  the  record  that  the 
court  below  gran  ted  the  motion  for  a  new 
trial  on  the  ground  that  the  jur^'  was  mis- 
directed by  the  followinginstructions,  viz. : 
"The  fact  of  the  language  being  true  is 
not  alone  an  answer  to  the  charge,  but 
can  only  be  shown  in  mitigation  of  dam- 
ages. It  is  not  a  defense  simy)]y  to  show 
the  truth  of  the  matter  published,  but 
the  party  must  go  further,  and  show  that 
it  was  not  only  true,  but  that  he  acted 
from  good  motives  and  for  a  justifiable 
end,  and  that  he  had  some  purpose  in  view 
that  was  justifiable.  If  that  be  the  case, 
if  he  acts  honestly,  for  good  purposes  and 
justifiable  ends,  and  what  he  says  is  true, 
then  he  is  to  be  excused  or  acquitted." 


In  this  condition   of  the  case,  we  must 
first    inquire    whether     the     instructions 
above  set  forth  were  improperly  given   on 
the  trial.     If  erroneous  as  a  statement  of 
the  law  controlling  the  case,  thej' certainly 
may  have   misled  the  jury.     If  cc)rrect  in 
principle,  and   applicable  under  the  issues 
presented,  the  court  erred   in  granting  a 
new  trial,  for  the  reason  given.    An  exam- 
ination of  this  question  will  lead  to  a  brief 
review  of  the  law  of  libel  in  both  criminal 
and   civil   prosecutions,  so  far  as   to  con- 
sider and    determine    when    a   defendant 
may  be  permitted  to  give  the  truth  in  evi- 
dence as  a  full  justification  of  alleged  libel- 
J  ous   matter.     It  was  at  one  time   the  rule 
of  the  common  law  that  the  truth  of  the 
charge,   however    honorable   and   praise- 
'  worthy  the  motives  of  the  publisher,  could 
not    be    given  in   evidence  in   a   criminal 
prosecution.     Hence  originated  the  famil- 
I  iar   maxim,  "The  greater   the   truth,  the 
greater    the    libel."      This    doctrine   was 
based  upon  the  theory  that,  where  it  was 
honestlj'  believed  a  particular   person  had 
committed  a  crime,  it  was  the  duty  of  him 
I  who  so  believed  or  so  knew  to  cause  the 
offender   to  be  prosecuted  and  brought  to 
justice,  as  in  a  settled  state  of  government 
a  party  aggrieved  ought  to  complain  for 
an  injury  to  the  settled  course  of  law;  and 
to  neglect   this   duty,  and   publish  the  of- 
fense to   the  world,  thereby   bringing  the- 
j  party  published   into   disgrace  or  ridicule- 
without  an   opportunity  to   show  by  the- 
I  judgment  of  a  court  that  he  was  innocent, 
was   libelous;  and.  if  the   matter  charged 
I  was  in  fact  true,  (thereby  insuring   social 
ostracism,)  the  injury  caused   by  the  pub- 
!  lication  was  much  greater  than  where  the 
publication  was  false.    A  false  publication, 
i  it  was  contended,  could  be  explained   and 
exposed;  a   true   one  was   difficult   to  ex- 
plain away.     As  an   additional  reason  for 
this   rule,  it  was  also   held  that  such  pub- 
lications, even  if  true,  were  provocative  of 
breaches  of  the  peace,  and  the  greater  the 
truth  contained  therein  the  greater  the  lia- 
bilit3'of  hostile  meetings  therefrom.     That 
this  was   the  true  rule  of  the  common  law 
has   been   denied   by   many  of  the  able.«^(i 
jurists  in  both  England  and  America,  who 
maintained   that  the  libertj'  of  the  pr'^ss 
consisted  in  the  right  to  publish,  with  im- 
punity, truth  with   good  motives   and  for 
justifiable  ends,  whether  it   respected  gov- 
ernment,   magistracy,  or  individuals.     It 
'  certainly  was  derived  from   the  polluted 
I  source   of  the  star  chamber,  and  was  con- 
I  sidered   at   the   time   an   innovation,  but, 
j  like  some  other  precedents,  although  arbi- 
I  trarilj'   and    unjustly  established,  it  came 
;  to  be  followed   generally   by  the  courts, 
;  and  sustained  as  the  law  of  the  land.     In 
lS04,inthe  state  of  New  York,  this  principle 
of  law  was  recognized  and  asserted  in  the 
case   of  People  v.  Crosswell.     In  that  case 
the  defendant  was  prosecuted  for  libel  for 
having    pub]ishe<l     in    his   newspaper  at 
Hudson,  in  that  state,  called  the  "Wasp," 
the  charge  against  Thomas  Jefferson,  then 
president,  that  he  (Jefferson)  paid   Callen- 
der  for  calling   Washington   a   traitor,  a 
robber,   and   a   perjurer.     The  defendant, 
through  his  counsel,  Alexander  Hamilton, 
applied   to  the  judge  at  the  circuit  to   put 
off  the  trial    to   obtain   the  testimony  ot 


104 


LAW  OF  TORTS. 


Callender  to  prove  the  publication  true. 
Lewis,  C.  J.,  presiding,  denied  tlie  motion, 
because  the  testimony  was  inadmissible, 
as  tho  truth  of  the  facts  cliarged  as  libel- 
ous did  not  amount  to  a  complete  justifi- 
cation. 3  Johns.  Cas.  33G.  This  case  at- 
tracted so  much  attention  that,  after 
a  verdict  of  guilty  had  been  rendered, 
and  while  the  case  was  in  the  courts 
of  New  York  on  a  motion  for  a  new 
trial,  the  legislature  of  that  state  passed 
a  law  providing  that,  in  every  prose- 
cution for  writing  or  publishing  any 
libel,  it  should  be  lawful  for  the  defend- 
ant upon  the  ti'ial  to  give  in  evidence,  in 
his  defense,  the  truth  of  the  matter  con- 
tained in  the  publication  charged  as  libel- 
ous, and  that  such  evidence  should  not  be 
a  justification,  unless  it  should  be  further 
made  satisfactorily  to  appear  that  the 
matter  charged  as  libelous  was  published 
with  good  motives  and  for  justifiableends. 
Since  the  adoption  of  the  New  York  stat- 
ute declaratoi'y  of  the  law  of  libel  in  crim- 
inal actions,  nearly  every  state  in  the 
Union  has  made  the  subject  a  matter  of 
constitutional  or  statutory  provision. 
The  wise  framers  of  our  own  constitu- 
tion, peculiarly  acquainted  with  the  bene- 
ficial influences  of  free  discussion  and  a  free 
press,  as  participants  in  the  historical  in- 
cidents and  conflicts  surrounding  the  set- 
tlement of  the  territory  of  Kansas,  modi- 
fied the  tyrannical  and  harsh  rule  of  the 
common  law  as  stated  in  the  star  chamber 
of  England,  and  thereafter  generally  un- 
derstood and  interpreted,  by  providing, 
in  section  11  of  our  bill  of  rights,  that 
"the  liberty  of  the  press  shall  be  inviolate, 
and  all  persons  may  freely  speak,  write, 
or  publish  their  sentiments  on  all  subjects, 
being  responsible  for  the  abuse  of  such 
right;  and,  in  all  civil  or  criminal  actions 
for  libel,  the  truth  maybe  given  in  evidence 
to  the  jury,  and,  if  it  shall  appear  that 
the  alleged  libelous  matter  was  published 
for  justifiableends,  the  accused  party  shall 
be  acquitted."  Nevertheless  these  f  ram - 
ers,  in  a  spirit  of  wisdom,  and  to  preserve 
order,  were  careful  not  to  give,  as  against 
the  interests  of  the  public, complete  license 
even  to  the  truth,  when  published  for  the 
gratification  of  the  worst  of  passions,  or 
to  affect  the  peace  and  happiness  of  socie- 
ty. They  prescribe  that  the  accused  should 
be  acquitted,  not  on  proof  of  the  truth  of 
the  charge  alone,  but  it  should  further 
appear  the  publication  was  made  for  jus- 
tifiable ends.  Following  the  intendment 
of  the  constitution,  the  legislature  after- 
wards provided,  in  the  act  relating  to 
crimes  and  punishments,  that,  "in  all 
prosecutions  or  indictments  for  libel,  the 
truth  thereof  may  be  given  in  evidence  to 
the  jury;  and  if  it  appears  to  them  that 
the  matter  charged  as  libelous  was  true, 
and  was  published  with  good  motives  and 
for  justifiable  ends,  the  defendant  shall  be 
acquitted."    Section  272,  Gen.  St.  p.  376. 

But  the  law-makers,  jealous  of  the  liber- 
ty of  the  press,  and  fearing  the  construc- 
tion of  the  law  by  the  courts  in  such 
prosecution,  further  provided,  in  a  suc- 
ceeding section  of  the  same  act,  that,  "in 
all  indictments  or  prosecutions  for  libel, 
the  jury,  after  having  received  the  direction 
of  the  court,  shall  have  the  right  to  deter- 


mine, at  their  discretion,  the  law  and  the 
fact."    Section  27.5,  Gen.  St.  p.  877. 

While  the  rule  of  the  common  law,  as 
generally  applied,  was  so  exacting  and 
rigorous  to  the  defense  of  justification  in 
criminal  pi'osecutions  for  libel,  a  different 
doctrine  was  applicable  in  civil  cases.  In 
the  case  of  King  v.  Root,  4  Wend.  114,  139, 
Chancellor  Walworth  clearly  states  this 
difference  as  follows:  "The  difficulty 
which  existed  in  England,  previous  to 
Mr.  Fox's  libel  act,  was  that  in  criminal 
prosecutions  the  defendant  w^as  not  per- 
mitted to  give  the  truth  in  evidence;  and 
yet  the  jurj'^  were  required  to  imply  mal- 
ice. But  in  civil  cases  the  defendant  was 
permitted  to  give  the  truth  in  evidence 
as  a  full  justification."  Such  was  de- 
clared to  be  the  law  by  the  judges  at  the 
time  that  bill  was  under  discussion  in 
parliament,  and  there  has  never  been  any 
alteration  of  the  law  in  England  on  this 
subject  in  civil  suits.  The  case  of  King 
V.  Root,  supra,  was  originally  tried  at 
one  of  the  circuits  in  New^  York  before 
lion.  Samuel,  R.  Betts.  The  defendants, 
King  and  Verplanck,  were  editors  of  the 
New  York  American,  printed  in  the  city  of 
New  York  in  1S24.  Tliese  editors  published 
concerning  one  Root,  lieutenant  governor 
of  that  state,  among  other  things,  that 
in  August  of  that  year  he  addressed 
the  state  senate,  then  in  session,  "while 
blind  with  passion  and  rum,  when  he 
was  unwashed,  unshaven,  haggard,  with 
tobacco  juice  trickling  from  the  corners  of 
his  mouth,  and  in  a  condition  outraging 
all  order,  decencj',  and  forbearance. " 
Root  brought  a  civil  action  to  recover 
damages  for  the  alleged  libel,  and  the  de- 
fendants admitted  the  publication,  and 
pleaded  the  truth  as  justification.  The 
trial  judge  instructed  the  jury,  "if  the  de- 
fendants had  only  published  the  truth, 
they  had  an  unquestionable  right  to  do 
that,  and  they  must  be  acquitted." 

Blackstone,  in  his  Commentaries,  asserts 
that  the  trath  could  always  be  given  in 
civil  cases  in  justification  of  libel,  and 
seems  to  consider  the  defendant's  exemp- 
tion in  such  instances  as  extended  to  him 
in  consideration  of  his  merit  in  having 
warned  the  public  against  the  evil  prac- 
tices of  a  delinquent.  He  says  that  it  is  a 
damnum  absque  injuria,  intim.ating  that 
the  acts  of  the  defendant  who  justifies  a 
libelous  publication  does  not  constitute 
a  wrong,  in  its  legal  sense,  and  then  pro- 
ceeds to  observe  that  this  is  agreeable  to 
the  reasoning  of  the  civil  law.  3  Bl. 
Comm.  125.  This  is  illogical;  and  Starkie 
bases  this  exemption  on  the  better  reason 
that,  in  such  instances,  the  plaintiff  has 
excluded  himself  from  his  right  of  action 
at  law  by  his  own  misconduct,  and  not 
to  anj'^  merit  appertaining  to  the  defend- 
ant. When  a  plaintiff  is  reallj'  guilty  of 
the  offense  imputed,  he  does  not  offer 
himself  to  the  court  as  a  blameless  party, 
seeking  a  remedy  for  a  malicious  mischief. 
His  original  misbehavior  taints  the  whole 
transaction  with  which  it  is  connected, 
and  precludes  him  from  recovering  that 
compensation  to  which  all  innocent  per- 
sons would  be  entitled.  Folk.  Starkie, 
Sland.  &  L.  (Amer.  Ed.)  §  092. 

There  are  many  good  and  sufficient  rea- 


SLANDER  AND  LIBEL. 


135 


sons  why  a  publisher  of  a  statement,  true 
in  fact,  yet  j2:ivon  to  the  pnlilio  with  a 
raalifiouH  (lo.sifi:n  lo  create  niiscliief, siiould 
be  amenable  to  the  criminal  laws,  and 
yet  not  be  liable  in  a  civil  action.  On  gen- 
eral principles,  no  right  to  damages  can 
be  founded,  on  a  publication  of  the  truth, 
from  the  consideration  that  the  reason 
for  awarding  damages  in  everj'  such  case 
fails.  The  riglit  to  compensation,  in  point 
of  natural  justice,  is  founded  on  deception 
and  fraud  which  have  been  practiced  by 
the  defendant  to  the  detriment  of  the 
plaintiff.  If  the  imputation  is  true,  there 
is  no  deception  or  fraud,  and  no  right  to 
compensation.  The  criminal  action  in 
libel  is  supported  to  prevent  and  restrain 
the  commission  of  mischief  and  inconven- 
ience to  society.  Take  the  case  of  two 
men  who  agree  to  engage  together  in  fisti- 
cuffs; the  law,  for  the  protection  of  the 
peace  of  society,  and  to  prevent  greater 
collisions,  maj'  arrest  and  punish  both 
combatants,  and  yet  neither  may  be  able 
to  recover  from  the  other  personal  dam- 
ages. Where  a  person  makes  the  publica- 
tion solely  to  disturb  the  harmony  and 
happiness  of  society,  or  to  maliciously  an- 
noy and  injure  the  feeling  of  others,  or  to 
create  misery  by  exposing  the  latent  and 
personal  defects  of  associates  or  acquaint- 
ances, the  interests  of  the  public  require 
some  preventive,  notwithstanding  the 
truth  of  the  publication.  This  is  fur- 
nished by  the  criminal  law.  But  mere  in- 
jury to  the  imagination  or  feeling,  how- 
ever malicious  it  may  be  in  its  origin  or 
painful  in  its  consequences,  is  not  proper- 
ly the  subject  of  remedy  by  an  action  for 
damages.  Such  offenses,  being  unconnect- 
ed with  any  substantive  right,  are  inca- 
pable of  pecuniary  admeasurement  and  re- 
dress. They  admit  of  no  exact  definition  ; 
and  therefore  to  extend  a  remedy  to  such 
injuries  generally  would  be  productive  of 
great  uncertainty  and  inconvenience,  and 
open  far  too  wide  a  field  of  litigation. 
Again,  it  seems  to  be  clear  that  a  party 
who  acquires  an  advantage  by  concealing 
the  truth  which  he  could  not  have  at- 
tained to  had  he  divulged  it,  so  far  is 
guilty  of  fraud  in  the  concealment  that  he 
cannot  upon  any  principle  claim  a  right 
to  acquire  that  benefit,  and  therefore 
cannot  complain  that  he  is  injured  by  the 
publication  of  the  truth.  Starkie,  Sland. 
&  L.  35.  In  this  view  the  truth  hurts  no 
one. 

In  accordance  with  the  doctrine  that 
the  defendant  is  justified  in  law,  and  ex- 
empt from  all  civil  responsibility,  if  that 
which  he  publishes  be  true,  it  is  provided 
in  Civil  Code,  §  126,  that,  "in  all  actions 
mentioned  in  the  last  section,  [libel  and 
slander.]  the  defendant  ma.v  allege  the 
truth  of  the  matter  charged  as  defama- 
tory, and  maj'  prove  the  same,  and  any 
mitigating  circumstances,  to  reduce  the 
amount  of  damages,  or  he  may  prove  ei- 
ther."  This  section  of  the  Code  may  be 
construed  to  mean,  "in  actions  for  libel  or 
slander,  the  defendant  may  allege  the 
truth  of  the  matter  charged  as  defama- 
tory, and  may  prove  the  same,  [as  a  de- 
fense or  full  justification.]  and  [he  may  al- 
so allege]  any  mitigating  circumstances 
[in    the    same     answer]     to     reduce    the 


amount  of  damages,  or  he  may  prove  ei- 
ther [the  truth  as  a  defense  or  mitigating 
circumstances  to  reduce  the  damages.] " 
In  other  words,  under  the  Code,  the  truth 
is  a  full  justification  in  a  civil  action  ;  and, 
in  the  absence  of  justification,  mitigating 
circumstances  may  be  proved  to  reduce 
the  damages;  and  justification  and  miti- 
gation may  be  set  forth  in  the  same  an- 
swer, and  the  defendant  may  prove  either 
or  both.     Gen.  St.  p.  653. 

If  it  be  contended  that,  within  the  pro- 
vision of  the  constitution,  the  proof  of 
the  truth  as  a  defense  in  a  civil  action  is 
no  justification,  except  it  be  also  made 
to  appear  that  the  publication  was  had 
for  justifiable  ends,  we  answer  that,  in 
view  of  the  rule  of  law  applicable  in  such 
cases  at  the  time  of  the  adoption  of  the 
state  constitution,  we  do  not  think  such 
a  construction  proper.  It  is  not  in  ac- 
cordance with  the  spirit  or  the  letter  of 
that  instrument.  It  provides  that  in  civil 
and  criminal  actions  the  truth  may  be 
given  in  evidence  to  the  jury,  and,  where 
an  accused  is  on  trial,— that  is,  where  a 
person  charged  with  a  crime  for  the  pub- 
lication of  alleged  libelous  matter  is  being 
tried,— he  is  not  to  be  acquitted,  except 
the  publication  is  true,  and  the  same  was 
published  for  justifiable  ends.  In  that 
event  only  is  the  accused  party  entitled 
to  an  acquittal.  The  word  "accused  "  is 
used  in  the  constitution,  and,  an  "ac- 
cused" being  one  who  is  charged  with  a 
crime  or  misdemeanor,  it  cannot  well  be 
said  to  apply  to  a  defendant  in  a  civil  ac- 
tion. If  the  motive  of  the  party  publish- 
ing the  truth  is  to  be  considered  in  civil 
suits,  under  the  constitution,  then  this 
section  quoted,  instead  of  operating  to 
the  protection  of  individuals  charged  in 
personal  actions  for  damages  for  the  pub- 
lication of  alleged  libelous  matter,  as  was 
doubtless  intended  by  the  framers  of  the 
constitution,  would  have  the  effect  to 
hold  parties  responsible  in  cases  where 
at  the  common  la  w  thej' would  be  enti- 
tled to  a  verdict.  The  constitution  con- 
tains no  grant  of  powers  to  the  legisla- 
ture. It  is  only  a  limitation  on  the  exer- 
cise of  its  authority ;  and  the  legislature, 
in  its  discretion,  has  the  right  to  pass  any 
act  not  violative  of  the  state  or  federal 
constitutions.  The  object  uf  section  11  of 
the  bill  of  rights  was  to  prevent  the  pas- 
sage of  any  law  in  Kansas  restraining  or 
abridging  the  liberty  of  speech  and  of  the 
press.  By  it  the  harsh  rule  of  the  common 
law,  as  generally  recognized  in  libel  prose- 
cutions, was  greatly  modified ;  but  we 
cannot  seriously  think  that  it  was  intend- 
ed therebj'  to  abrogate  that  principle  of 
the  common  law,  sustained  and  upheld 
under  the  exacting  and  arbitrary-  con- 
struction of  libels  in  England,  that  proof 
of  the  truth  is  a  complete  justification  in 
all  civil  actions.  Nor  can  we  believe  that 
thereby  it  was  intended  that  the  legisla 
tive  power  of  the  state  was  forever  de- 
prived of  conferring  the  right  upon  a  de- 
fendant in  a  civil  action  of  libel  to  plead 
the  truth  of  the  words  charged  as  a  full 
and  complete  defense.  To  assert  other- 
wise would  be  to  assert  that  the  constitu- 
tion abridged  and  curtailed  the  liberty 
of  the  press  in  civil  actions  more  than  the 


i;>6 


LAW  OF  TORTS. 


common  law, — more  than  the  provisions 
of  the  constitutions  of  other  states.  The 
modification  of  the  common  law  by  the 
constitution  we  construe  in  favor  of  the 
liberty  of  the  press,  not  against  it.  To 
conclude  otherwise  would  be  to  ignore  the 
popular  sentiment  in  Kansas  at  the  adop- 
tion of  the  constitution,  and  assume  that 
the  successful  contestants  in  behalf  of  a 
free  press  were  forgetful  in  their  victories 
of  its  powerful  influences  in  their  behalf, 
or  had  unwittingly  deprived  themselves 
of  rights  allowed  in  England  under  the 
sway  of  despotic  monarchs  and  the  rule 
of  arbitrary  judges.  The  constitution  of 
Rhode  Island  provides,  "in  all  trials  for 
libel,  both  civil  and  criminal,  the  truth, 
unless  published  from  malicious  motives, 
shall  be  sufficient  defense  to  the  person 
charged."  And  it  was  held  in  that  state 
that  the  truth  of  the  charge  is  a  good  de- 
fense in  a  civil  action  for  libel.  Perry  v. 
Man,  1  R.  I.  263, 

From  our  review  of  the  authorities,  the 
provision  of  our  constitution,  the  Civil 
and  Criminal  Codes,  we  deduce  these  im- 
portant principles:  First.  In  all  criminal 
prosecutions  the  truth  of  the  libel  is  no 
defense  unless  it  was  for  public  benefit 
that  the  matters  charged  should  be  pub- 
lished ;  or,  in  other  words,  that  the  al- 
leged libelous  matter  was  true  in  fact,  and 
was  published  for  justifiable  ends;  but  in 
all  such  proceedings  the  jury  have  the 
right  to  determine,  at  their  discretion,  the 
law  and  the  fact.  Second.  In  all  civil 
actions  of  libel  brought  by  the  party 
claiming  to  have  been  defamed,  where  the 
defendant  alleges  and  establishes  the 
truth  of  the  matter  charged  as  defama- 
tory, such  defendant  is  justified  in  law, 
and  exempt  from  all  civil  responsibility. 
In  such  actions  the  jury  must  receive  and 
accept  the  direction  of  the  court  as  to  the 
law.  Under  this  view,  the  court  below 
misdirected  the  jury  in  a  very  material 
point,  and  properly,  on  attention  being 
again  called  to  the  matter  hy  a  motion 
for  a  new  trial,  granted  such  motion,  and 
set  the  case  again  for  hearing.  The  in- 
structions given  might  have  been  applica- 
ble in  a  criminal  proceeding,  where  the 
motive  of  the  publication  is  important, 
and  where  the  jury  have  a  right  to  deter- 
mine the  law  as  well  as  the  fact;  but  were 
erroneous  in   a  civil    action,    where    the 


facts  charged  were  proven  in  justification. 
The  instructions  assumed  that  the  truth 
is  not  a  full  and  complete  defense  unless  it 
was  shown  to  have  been  published  for 
good  purposes  and  justifiable  ends,  Thi8 
is  not  correct.  If  the  charges  made  by  the 
defendant  are  true,  however  malicious,  no 
action  lies.  Root  v.  King,  7  Cow.  613, 
632;  Townsh.  Sland.  &  L.  §  211;  Foss  v. 
Hildreth,  10  Allen,  76;  Baum  v.  Clause,  5 
Hill,  196;  1  Starkie,  Sland.  &L.  229;  Rayne 
V.  Taylor,  14  La,  Ann.  406. 

The  plaintiff  in  error  contends  that  the 
instructions  could  not  have  been  preju- 
dicial to  the  defendant  in  error,  as  the 
plea  of  justification  was  insufficient  in 
form,  and  therefore  thedistrict  court  erred 
in  granting  a  new  trial.  The  answer, 
among  other  things,  alleged  "that  the 
matters  charged  as  defamatory  were 
true. "  No  motion  was  filed  in  the  case  to 
make  the  answer  more  definite  or  certain; 
no  demurrer  was  presented;  no  objection 
taken  to  the  evidence  of  the  truth  of  the 
charge,  as  we  can  ascertain ;  and  from  the 
record  we  must  as.sume  that  the  case  was 
tried  on  the  theory  that  the  defendant 
was  attempting  to  show  as  justification 
the  truth  of  the  publication;  and  we  may 
assume  that  the  evidence  tended  to  prove 
the  truth  of  the  publication.  Under  these 
circumstances,  the  point  now  made  by 
the  counsel  of  the  plaintiff  as  to  the  im- 
materiality of  the  instructions  is  not  well 
taken.  The  case  was  heard  by  thedistrict 
court  on  the  supposition  that  the  plea  of 
justification  was  sufficiently  formal;  the 
instructions  of  the  court  discuss  what  is 
necessary  to  be  shown  to  make  the  truth 
a  full  justification  ;  and,  the  jury  having 
been  misdirected  in  the  hurry  of  the  trial, 
no  error  was  committed  in  setting  aside 
the  verdict.  Had  the  action  of  the  court 
been  otherwise,  on  proper  application  we 
would  have  reversed  the  judgment.  If 
any  delay  has  resulted  to  the  plaintiff  in 
error  in  obtaining  a  speedy  trial,  it  has 
been  caused  by  the  pendency  of  this  pro- 
ceeding in  error  in  this  court,  where  it  was 
brought  by  the  plaintiff.  For  this  action 
the  defendant  in  error  was  not  responsi- 
ble. 

The  order  of  the  district  court  setting 
aside  the  verdict  of  the  jury  in  the  case, 
and  granting  a  new  trial,  is  afiirmed. 

All  concurred. 


(See,  also,  Donaghue  v.  GafEy,  53  Conn.  43,  2  All.  Rep.  397;  Royce  v.  Maloney,  57  Vt.  325;  Perry 
V.  Porter,  124  Mass.  338;  Drake  v.  State,  (N.  J.  Sup.)  20  Atl.  Rep.  747;  Hathorn  v.  Spring  Co.,  44  Hun, 
603;  Ellis  v.Buzzell,  60  Me.  209.) 


VI.  DEFENSE  OF  "PRIVILEGED  COMMUNICATION." 


1.  Qualified  privilege. 


(73  Md.  87,  20  Atl.  Rep.  774.) 

Fkesh  v.  Cutter. 

(Court  of  Appeals  of  Maryland.    Nov.  13, 1890. ) 

1.  Slandek — Privileged  Communications — Char- 
ACTEK  OF  Servant. 

Where  the  former  master  of  one  who  is  about 
to  enter  the  service  of  another,  voluntarily,  in 
good  faith,  without  malice,  in  the  honest  belief 

lat  he  is  discharging  a  duty  to  his  neighbor,  and 


with  a  full  conviction  of  the  truth  of  his  words, 
tells  the  new  master  that  the  servant  has  stolen 
from  him,  the  communication  is  privileged. 

2.  Same. 

Punitive  damages  cannot   be  allowed   in  such 
case  without  a  finding  of  malice. 

3.  Same. 

The  speaking   of  such  words   to  a  person  other 
than  the  new  master  would   not   be  privileged, 
though  made  with  a  belief  in  their  truth. 


SLANDER  AND  LIBEL. 


137 


4.  Sake— Pleading. 

A  plea  of  privilep:ed  communication,  which 
merely  avers  that  defendant  spoke  the  words  to 
a  neighbor  who  was  about  to  employ  plaintiff,  in 
the  bona  fide  performance  of  a  duty,  without 
malice,  and  with  an  honest  belief  that  they  were 
true,  is  bad,  as  not  being  suflBciently  specific. 

Appeal  from  circuit  court,  Washington 
county. 

The  pleas  herein  successfully  demurrred 
to  were  as  follows:  "And  the  defend- 
ant, for  a  second  plea,  says  that  he  hon- 
estly and  bona  fide  believed  the  words 
spoken  by  him  were  true,  and  that  he 
spoke  them  to  a  neighbor  who  had  em- 
ploj'ed  the  plaintiff,  or  was  about  to  em- 
ploy him,  and  that  he  spoke  the  words  to 
said  neighbor  in  the  bona  fide  perform- 
ance of  a  duty,  and  without  malice;  and 
for  a  third  plea  the  defendant  says  that, 
when  he  spoke  the  alleged  slanderous 
words  set  forth  in  the  declaration,  he 
honestly  and  bonn  fide  believed  them  to 
be  true,  and  that  he  spoke  them  only  to  a 
neighbor,  Mr.  Charles  Allen,  who  had  em- 
ployed, or  was  about  toemploy,  theplain- 
tiff,  and  that  he  spoke  the  said  words  to 
said  neighbor  in  the  bona  fide  perform- 
ance of  a  duty,  and  without  malice." 

Argued  before  Ai.vey,  C.  J.,  and  Bryan. 
Miller,  Irvlng,  Fowler,  Briscoe,  and 
McSherry,  JJ. 

Jas.  A.  McHe.rry  and  H.  H.  Keedy,  for 
appellant.  David  W.  Sloan  D  J.  Black- 
iston,  and  Edward  Stake,  for  appellee. 

McSherry,  J  Jacob  Cutter  sued  George 
H.  Fresh  for  defamatory  words  alleged  to 
have  been  spoken  by  the  latter  of  and 
concerning  the  former.  Cutter  had  at  one 
timp  been  an  employee  of  Fresh,  but  after 
he  ceased  to  occupy  that  relation,  and  had 
entered,  or  was  about  to  enter,  the  serv- 
ice of  one  Allen,  Fresii,  of  his  own  accord, 
and  without  solicitation  or  inquiry  on  the 
part  of  Allen,  said  to  Allen,  "He  [mean- 
ing the  plaintiff]  stole  as  good  as  two 
hundred  dollars  from  me,  and  I  want  the 
money.''  These  are  the  alleged  defama- 
tory words.  It  was  shown  by  the  evi- 
dence that  several  persons  had  communi- 
cated information  to  Fresh  which  induced 
him  to  believe  that  Cutter  had  while  in 
his  employment  stolen  from  him.  It  was 
also  shown  that  when  he  learned  that  his 
neighbor  Allen  had  employed  Cutter,  he. 
Fresh,  honestly  believed  that  it  was  his 
duty  to  inform  Allen  of  what  he  knew 
concerning  Cutter;  and  that  he  told  Allen 
these  things  voluntarily,  and  without  be- 
ing requested,  honestly  believing  it  was  a 
duty  he  owed  to  his  neighbor,  and  for 
the  sole  purpose  of  putting  Allen  upon  his 
guard.  He  testified  that  he  had  not  been 
actuated  by  malice  or  ill  will,  and  that 
he  had  never  had  anj^  bad  feeling  against 
Cutter.  There  was  some  evidence  that  the 
words  complained  of  had  been  sjjoken  by 
Fresh  to  a  person  named  Click,  though 
tlie  latter  was  unable  to  state  whether 
the  language  used  by  the  defendant  was 
"  took  "  or  "  stole.  " 

This  brief  outline  of  the  facts  is  sufficient 
to  indicate  that  the  principal  question 
which  we  a  re  called  njjon  to  decide  on  this 
appeal  is  whether  the  statement  made  by 
Fresh   to   Allen,  under  the  circumstances 


named,  was  a  privileged  communication 
or  not.  If  privileged,  all  the  authorities 
agree  in  holding  that  it  is  not  absolutely 
or  unqualifiedly,  but  only  conditionally, 
so.  If  falsely  and  maliciously  made,  it 
would  be  actionable.  Malice  is  the  founda- 
tion of  the  action,  and  in  ordinary  cases 
is  implied  from  the  slander;  but  there  may 
be  justification  from  the  occasion,  and 
when  this  appears,  an  exception  to  the 
general  rule  arises,  and  the  words  must  be 
proved  to  be  malicious  as  well  as  false. 
Beelerv..Iackson,64  Md..51)3,2  Atl.  Rep.916. 
This  justification  from  the  occasion  arises, 
in  the  class  of  cases  now  being  considered, 
when  a  communication  is  "made  bona 
fide  upon  any  subject-matter  in  which  the 
party  communicating  has  an  interest,  or 
in  reference  to  which  he  has  a  duty,  if 
made  to  a  party  having  a  corresponding 
interest  or  duty, "  although  the  commu- 
nication "contained  criminating  matter 
which,  without  this  privilege,  would  be 
slanderous  and  actionable;  and  this 
though  the  duty  be  not  a  legal  one,  but 
only  a  moral  or  social  duty  of  imperfect 
obligation."  Harrison  v.  Bush,  5  El.  & 
Bl.  344.  It  seems  to  be  generally  conced- 
ed, as  falling  within  this  principle,  that 
where  a  master  gives  a  character  of  a 
servant,  unless  the  contrarj^  be  expressly 
proved,  it  will  be  presumed,  that  the 
character  was  given  without  malice,  and 
the  plaintiff,  to  support  the  action,  must 
prove  that  the  character  was  both  falsely 
and  maliciously  given;  and,  although  the 
statement  as  to  the  character  should  be 
untrue  in  fact,  tlie  master  will  be  held  jus- 
tified by  the  occasion,  unless  it  can  be 
shown  that  in  making  the  statement  he 
was  actuated  by  a  malicious  feeling,  and 
knowingly  stated  what  was  untrue  and 
injurious.  Starkie,  Sland.  &  L.  253.  If, 
under  the  conditions  just  named,  thestate- 
ment  be  made  in  response  to  an  inquiry, 
it  would  undoubtedly  be  privileged. 
Weatherston  v.  Hawkins,  1  Term  K.  110; 
Child  V.  Affleck,  9  Barn.  &  C.  403.  But  in 
the  case  at  bar  it  is  conceded  that  the  in- 
formation was  given  bj"  the  appellant  to 
Allen  voluntarily,  and  not  in  response  tu 
any  inquiry  whatever,  and  this  is  sup- 
posed to  take  the  case  out  of  the  privi- 
lege. It  is  not  perceived  why  this  circum- 
stance should  make  any  difference  if  the 
party  has  acted  honestly,  fairly,  and 
without  malice,  though,  when  the  infor- 
mation has  been  voluntarily  given,  thi» 
fact,  it  has  been  said,  may  in  some  cases 
have  a  tendency  to  disclose  the  motive  of 
the  publisher  in  making  the  publication. 
Townsh.  Sland.  &  L.  §  241.  Without  re- 
viewing the  decided  cases,  it  may  be  said 
that  the  weight  of  authoritj'  is  to  the 
effect  that  the  mere  fact  of  the  communi- 
cation being  voluntarily  made  does  not 
necessarily  exclude  it  as  a  non-privileged 
communication,  for  a  publication  war- 
ranted by  an  occasion  apjjarently  benefi- 
cial and  honest  is  not  actionable,  in  the 
absence  of  express  malice.  Starkie, 
Sland.  &  L.  253.  Or,  as  stated  in  Odgers, 
Sland.  &  L.  202:  "If  it  were  found  that 
I  wrote  systematically  to  every  one  to 
whom  the  plaintiff  applied  for  work,  the 
jury  would  probably  give  damages 
against  mc.     On  the  other  hand,  if  B.  was 


138 


LAW  OF  TORTS. 


an  intimate  friend  or  a  relation  of  mine, 
and  there  was  no  otlier  evidence  of  mal- 
ice except  that  1  volunteered  the  informa- 
tion, the  occasion  would  still  be  privi- 
leged. "  Eogers  v.  Clifton,  3  Bos.  &  P.  587 ; 
Pattison  v.  Jones,  8  Barn.  &  C.  585.  It 
is  a  question  for  the  court  whether  the 
statement,  if  made  in  good  faith,  and 
without  malice,  is  thus  privileged.  But 
the  plaintiff  has  the  right,  notwithstand- 
ing the  privileged  character  of  the  com- 
munication, to  go  to  the  jury  if  there  be 
evidence  tending  to  show  actual  malice, 
as  when  the  words  unreasonably  impute 
crime,  or  the  occasion  of  their  utterance 
is  such  as  to  indicate,  by  its  necessary 
publicity,  or  otherwise,  a  purpose  wrong- 
fully to  defame  the  plaintiff.  Dale  v.  Har- 
ris, 109  Mass.  196;  Brow  v.  Hathaway,  13 
Allen,  239;  Somerville  v.  Hawkins,  10  C.  B. 
583;  Gassett  v.  Gilbert,  6  Gray,  94.  Or 
malice  may  be  established  by  showing 
that  the  publication  contained  matter  not 
relevant  to  the  t)Ccasion.  Townsh. 
Sland.  &  L.  §  245.  Expressions  in  excess 
of  what  the  occasion  warrants  do  not 
per  se  take  away  the  privilege,  but  such 
excess  may  be  evidence  of  malice.  Buck- 
ley v.  Kiernan,  7  Ir.  C.  L.,  75;  Hotch- 
kiss  V.  Porter,  30  Conn.  414.  It  follows 
from  these  principles  that  if  the  com- 
munication made  to  Allen  was  made  in 
good  faith,  without  malice,  in  the  hon- 
est belief  of  its  truth,  and  under  the  con- 
viction that  it  was  a  duty  which  Fresh 
owed  to  Allen  to  make  it,  the  words  com- 
plained of  would  not  be  actionable  be- 
cause privileged,  though  spoken  volun- 
tarily. It  is  equally  clear  that  if  the 
words  spoken  were  known  to  be  false 
and  were  maliciously  spoken,  or  were  vol- 
untarily spoken  to  one  to  whom  Fresh 
owed  no  duty,  in  the  sense  heretofore 
mentioned,  the  words  would  be  actiona- 
ble, because  not  within  the  privilege. 

In  view  of  these  conclusions,  there  was 
error  in  granting  the  appellee's  first  and 
second  instructions.  Those  instructions 
areas  follows,  viz. :  "The  plaintiff  prays 
the  court  to  instruct  the  jury  that  if  they 
shall  believe  from  the  evidence  that  the 
words  charged  in  the  declaration  were 
spoken  of  and  concerning  the  plaintiff  by 
the  defendant,  in  the  presence  and  hearing 
of  other  persons  than  the  plaintiff,  then 
the  plaintiff  is  entitled  to  recover  in  this 
action."  "That  if  the  jury  shalllind  for 
the  plaintiff,  they  may  award  such  dam- 
ages as  they  in  their  judgment  shall  think 
justified  by  all  the  circumstances  of  the 
case,  not  only  for  the  purpose  of  giving 
compensation  for  the  injury  done  to  the 
plaintiff,  but  also  for  the  purpose  of  pun- 
ishing the  conduct  of  the  defendant.  "  The 
first  instruction  was  wrong  in  omitting 
all  reference  to  the  defense  of  privilege.  It 
directed  the  jury  to  find  for  the  plaintiff  if 
they  believed  the  defendant  spoke  the 
words  in  the  presence  and  hearing  of  oth- 
er persons  tijan  the  plaintiff.  Under  this 
instruction,  the  jury  were  required  to  re- 
turn a  verdict  against  the  defendant,  even 
though  they  were  satisfied  that  the  words 
were  spoken  to  Allen  alone,  in  good  faith, 
without  malice,  in  the  full  belief  of  their 
truth,  and  under  the  honest  conviction 
that  Fresh  was  only  discharging  a  social 


duty  to  his  neighbor  in  making  the  com- 
munication. This  entirely  ignored  the 
question  of  privilege,  which  was  the  only 
defense  relied  on  by  the  appellant.  The 
second  instruction  was  also  erroneous. 
It  allowed  punitive  damages  to  be  recov- 
ered even  though  the  jury  were  not  re- 
quired to  find  the  existence  of  actual  mal- 
ice on  the  part  of  the  appellant.  In  cases 
of  this  character,  such  is  not  the  law.  If 
the  occasion  brings  the  words  within  a 
qualified  privilege,  no  damages  can  be  re- 
covered at  all,  unless  the  plaintiff  shows 
that  actual  malice  prompted  the  publica- 
tion or  utterance.  The  jury  should  have 
been  so  instructed;  but  they  were  permit- 
ted, not  merely  to  assess  damages,  but 
punitive  damages,  without  any  regard 
whatever  to  the  question  of  malice.  It  is 
true  these  instructions  were  taken  literal- 
ly from  the  case  of  Padgett  v.  Sweeting,  65 
Md.  404,  4  Atl.  Rep.  887,  where  they  were 
held  by  this  court  to  be  correct.  But  that 
case  was  widely  different  from  the  one  at 
bar.  In  the  former  there  was  no  question 
of  privilege.  The  words,  as  here,  were  ac- 
tionable per  se,  but  were  not,  as  in  this 
case  it  is  alleged,  spoken  on  any  occasion 
which  justified  their  utterance.  Under  the 
conditions  in  Padgett's  Case,  the  instruc- 
tions were  proper.  But  the  same  instruc- 
tions could  not  be  given  in  a  case  like  the 
one  before  us  now,  without  ignoring  all 
the  circumstances  admitted  in  evidence  re- 
specting the  occasion  of  the  publication, 
the  motive  which  inspired  it,  the  belief  of 
the  defendant  in  its  truth,  and  the  honesty 
and  good  faith  of  its  utterance. 

The  circuit  court  properly  rejected  the 
appellant's  first  and  third  prayers.  They 
were  defective  in  several  particulars.  The 
first  one  omits  to  submit  to  the  jury  to 
find  whether  the  words  spoken  by  the  ap- 
pellant to  Allen  were  the  words  com- 
plained of,  and  it  forbids  a  recovery  at  all 
if  the  communication  made  to  Allen,  what- 
ever it  was,  was  made  in  good  faith,  and 
without  malice,  even  though  made  to  oth- 
ers on  an  occasion  not  privileged.  In 
effect,  it  told  the  jurj-,  if  the  evidence  sus- 
tained the  hypothesis  of  the  prayer,  to  find 
for  the  defendant,  notwithstanding  the 
evidence  before  them  respecting  the  state- 
ments made  to  the  witness  Click.  The 
second  prayer,  after  submitting  to  the  jury 
to  find  the  good  faith,  honest  belief,  sense 
of  duty,  and  want  of  malice  on  the  part 
of  the  appellant,  concludes  thus:  "Then 
the  verdict  of  the  jurj-,  on  account  of  the 
said  communication  to  said  Allen,  must 
be  for  the  defendant."  The  declaration 
alleges  that  the  words  were  spoken  to  di- 
vers good  and  worthy  citizens  of  the 
state.  There  was  some  evidence,  as  we 
have  already  stated,  tending  to  show  that 
Click  was  one  of  the  persons;  and  the 
legal  sufficiency  of  that  evidence  was  not 
brought  into  question  by  a  prayer  for  in- 
structions. If  the  jury  believed  it,  and 
founded  a  verdict  upon  it,  they  would 
have  been  required,  had  this  prayer  been 
granted,  to  specifically  declare  that  they 
found,  under  this  prayer,  for  the  defend- 
ant as  to  the  words  spoken  to  Allen,  and 
for  the  plaintiff  as  to  the  same  words 
spoken  to  Click.  The  conclusion  of  the 
prayer  was  misleading  and  calculated  to 


SLANDER  AND  LIBEL. 


139 


■confuse  the  jury.  While  it  is  triio  tliat  the  ' 
^vortl.s  spoken  would  not  be  actionable  un- 
der certain  conditions  when  spoken  to  Al- ; 
len,  and  would  be  actionable  in  the  ab- , 
sence  of  those  conditions  when  spoken  to  ' 
Click,  all  that  the  court  could  properly  do 
in  such  a  case  would  be  to  submit  h^-po- 
thetically  to  the  jury  the  finding  of  facts 
which  created  the  privilege  in  the  one  in- 
stance, and  the  opposite  facts  which  de- 
stroyed it  in  the  other,  and  to  defiue  to  j 
the  jury  the  legal  conclusions  arising  from 
those  different  hypotheses.  A  specific  in- 
struction to  find  for  the  defendant  as  to 
one  of  these  hypotheses,  without  any  ref- 
erence whatever  to  the  other,  would  have 
been  misleading.  The  appellant  pleaded 
specially  the  privileged  character  of  the 
Communication,  and  the  appellee  demurred 
to  the  pleas.  The  court  sustained  the  de- 
murrer, and  in  this  we  think  no  error  is  to 
be  found.  The  pleas  were  too  general. 
Odgers,  Sland.  &  L.  644,  645.  The  third 
prayer  of  the  appellee  merely  defined  the 
meaning  of  the  tei-m  "malice, "  and  was 
free  from  objection.  For  the  error  indicat- 
ed in  granting  the  appellee's  first  and  sec- 
ond prayers,  the  judgment  must  be  re- 
versed, and  a  new  trial  must  be  awarded. 


(Ill  N.  Y.  14.3;  19  X.  E.  Rep.  73.) 

Byam  v.  Collins  et  al. 

{Court  of  Appeals  of  New  York.    Nov.  27, 1888.) 

1.  Libel  and  Slander — Privileged  Communica- 

tions— Character  of  Suitor. 
A  libelous  letter  to  an  unmarried  woman  con- 
cerning her  suitor,  not  written  at  her  request, 
but  appearing  to  have  been  written  at  the  in- 
stance of  mutual  friends,  for  the  purpose  of  pre- 
venting her  marriage  to  him,  is  not  privileged 
by  reason  of  previous  friendship,  nor  by  x-eason  ot 
a  request  made  four  years  before,  and  before  the 
acquaintance  of  the  suitor  was  made,  for  infor- 
mation of  anything  known  to  the  writer  concern- 
ing any  young  man  the  person  addressed  "went 
with, "  or  any  young  man  in  the  place. 

2.  Same— Confidential  Communications. 
Defamatory  words  are  not   privileged    because 

uttered  in  strictest  coniidence  by  one  friend  to 
another,  nor  because  they  are  uttered  after  the 
most  urgent  solicitation,  nor  because  the  inter- 
view in  which  they  are  uttered  is  obtained  at  the 
instance  of  the  person  slandered. 

3.  Same — Implied  Malice. 

Malice  is  implied  as  well  from  oral  as  from 
written  defamation,  where  the  communication  is 
not  privileged. 

Danforth,  J.,  dissenting. 

Reversing  39  Hun,  204. 

Appeal  from  supreme  court,  general  term, 
fifth  department. 

.Action  by  William  J.  Byam  against  Jen- 
nie E.  Collins,  and  Alfred  H.  Collins,  her 
husband,  for  libel  and  slander.  Judgment 
for  defendants  was  aflirmed  at  general 
term,  and  plaintiff  appeals. 

A.  J.  Abbott,  for  appellant.  James 
Wood,  for  respondents. 

Earl,  J.  The  general  rule  is  that  in  the 
case  of  a  libelous  publication  the  law  Im- 
plies malice,  and  Infers  some  damage. 
What  are  called  "privileged  communica- 
tions" are  exceptions  to  this  rule.  Such 
communications  are  divided  into  several 
classes,  with  one  onlj'  of  which  we  are 
-concerned  in   this  case,  and  that  is  gener- 


ally formulated  thus:  "A  communication 
made  bona  Gde  upon  any  subject-matter 
in  which  the  party  communicating  has 
an  interest,  or  in  reference  to  which  he  has 
a  duty,  is  privileged,  if  made  to  a  person 
having  a  corresponding  interest  or  duty, 
although  it  contain  criminating  matter 
which,  without  this  privilege,  would  be 
slanderous  and  actionable;  and  this 
though  the  duty  be  not  a  legal  one,  but 
only  a  moral  or  social  duty  of  imperfect 
obligation."  The  rule  was  thus  stated  in 
Harrison  v.  Bush,  5  El.  &  Bl.  344,  and  has 
been  generally'  approved  by  judges  and 
text-writers  since.  In  Toogood  v.  Spy- 
ring,  1  Ci'omp.  M.  &  R.  181,  an  earlier  case, 
it  was  said  that  the  law  considered  a 
libelous  "  publication  as  malicious  unless 
it  is  fairly  made  by  a  person  in  the  dis- 
charge of  some  public  or  private  duty, 
whether  legal  or  moral,  or  in  the  conduct 
of  his  own  txffairs  in  matters  where  his  in- 
terest is  concerned;"  and  that  statement 
of  the  rule  was  approved  by  Folger,  J., 
in  Klinck  v.  Colby,  46  N.  Y.  427,  and  in 
Hamilton  v.  Eno.  SI  N.  Y.  IIG.  In  White 
V.  Nicholls,  3  How.  266,  291,  it  was  said 
that  the  description  of  cases  recognized  as 
privileged  communications  must  be  under- 
stood as  exceptions  to  the  general  rule, 
and  "as  being  founded  upon  sf)me  appar- 
ently recognized  obligation  or  motive, 
legal,  moral,  or  social,  which  may  fairly 
be  presumed  to  have  led  to  the  publica- 
tion, and  therefore  prima  facie  relieves  it 
from  that  just  implication  from  which  the 
general  law  is  deduced." 

Whether  within  the  rule  as  defined  in 
these  cases  a  libelous  communication  is 
privileged,  is  a  question  of  law;  and  when 
upon  any  trial  it  has  been  held  as  matter 
of  law  to  be  privileged,  then  the  burden 
rests  upon  the  plaintiff  to  establish  as 
matter  of  fact  that  it  was  maliciously 
made,  and  this  matter  of  fact  is  for  the 
determination  of  the  jury-  It  ha.s  been 
found  difficult  to  frame  this  rule  in  any 
language  that  will  furnish  a  plain  guide 
in  all  cases.  It  is  easy  enough  to  apply 
the  rule  in  cases  where  both  parties — the 
one  making  and  the  one  receiving  the  com- 
munication— are  interested  in  it,  or  where 
the  parties  are  related,  or  where  it  is 
made  upon  request  to  a  part^-  who  has  an 
interest  in  receiving  it,  or  where  the  par- 
ty making  it  has  an  interest  to  subserve, 
or  where  the  party  making  it  is  under  a 
legal  duty  to  make  it.  But  when  the 
privilege  rests  simply  upon  the  moral  du- 
ty to  make  the  communication,  there  has 
been  much  uncertainty  and  difficulty  in 
applying  the  rule.  The  difficulty  is  to  de- 
termine what  is  meant  by  the  term  "mor- 
al duty,"  and  whether  in  any  given  case 
there  is  such  a  duty.  In  "Whiteley  v. 
Adams,  15  C.  B.  (N.  S.)  393,  Erle,  C.  J., 
said:  "Judges  who  have  had  from  time 
to  time  to  deal  with  questions  as  to 
whether  the  occasion  justified  the  speak- 
ing or  the  writing  of  defamatory  matter 
have  all  felt  great  difliculty  in  defining 
what  kind  of  social  or  moral  duty,  or 
what  amount  of  interest,  will  afford  a 
justification;"  and  in  the  same  case 
Bylks.  J.,  said  tne  application  of  the  rule 
"to  particular  cases  has  always  been  at- 
tended  with  the   greatest  difficulty,  the 


140 


LAW  OF  TORTS. 


combinations  of  circumstances  are  so  infi- 
nitely various. " 

The  rule  as  to  privileged  communica- 
tions should  not  be  so  extended  as  to 
open  wide  the  flood-gates  of  injurious 
gossip  and  defamation,  hy  which  private 
character  may  be  overwhelmed,  and  irrep- 
arable mischief  done;  and  yet  it  should 
he  so  administered  as  to  give  reasonaDle 
protection  to  those  who  make  and  receive 
communications  in  which  they  are  inter- 
ested, or  in  reference  to  which  they  have 
a  real,  not  imaginary,  duty.  Every  one 
owes  a  moral  duty  not,  as  a  volunteer  in 
a  matter  in  which  he  has  no  legal  duty 
or  personal  interest,  to  defame  another 
unless  he  can  tlnd  a  justification  in  some 
pressing  emergency.  In  Coxhead  v.  Rich- 
ards, 2  Man.  G.  &  S.  *569,  *601,  Coltman, 
J.,  said:  "The  duty  of  not  slandering 
your  neighbor  on  insufficient  grounds  is 
so  clear  that  a  violation  of  that  duty 
ought  not  to  be  sanctioned  in  the  case  of 
voluntary  communications,  except  under 
circumstances  of  great  urgency  and  gravi- 
ty. It  may  be  said  that  it  is  very  hard 
on  a  defendant  to  be  subject  to  heavy 
damages  when  he  has  acted  honestly, 
and  when  nothing  more  can  be  imputed 
to  him  than  an  error  in  judgment.  It 
may  be  hard,  but  it  is  very  hard,  on  the 
other  hand,  to  be  falsely  accused.  It  is 
to  be  borne  in  mind  that  people  are  but 
too  apt  rashly  to  think  ill  of  others.  The 
propensity  to  tale-bearing  and  slander  is 
so  strong  among  mankind,  and  when 
suspicions  are  infused  men  are  so  apt  to 
entertain  them  without  due  examination, 
in  cases  where  their  interests  are  con- 
cerned, that  it  is  necessary  to  hold  the  rule 
strictly  as  to  any  officious  intermeddling 
by  which  the  character  of  others  is  affect- 
ed." And  in  the  same  caseCRESSWELL,  J., 
said:  "If  the  property  of  the  ship-owner 
on  the  one  hand  was  at  stake,  the  charac- 
ter of  the  captain  was  at  stake  on  the 
other;  and  I  cannot  but  think  that  the 
moral  duty  not  to  publish  of  the  latter 
defamatory  matter  which  he  did  not 
know  to  be  true  was  quite  as  strong  as 
the  duty  to  communicate  to  the  ship-own- 
er that  which  he  believed  to  be  true.  " 

One  may  not  goaboutinthecoramunity, 
and,  acting  upon  mere  rumors,  proclaim  to 
everj'body  the  supposed  frailties  or  bad 
character  of  his  neighbor,  however  firmly 
he  may  believe  such  rumors,  and  be  con- 
vinced that  he  owed  a  social  duty  to 
give  them  currency,  that  the  victim  of 
them  may  be  avoided;  and  ordinarily 
one  cannot  with  safety,  however  free  he 
may  be  from  actual  malice,  as  a  volun- 
teer, pour  the  poisoQ  of  such  rumors  into 
the  ears  of  one  who  might  be  affected  if 
the  rumors  were  true.  I  cite  a  few  cases 
by  way  of  illustration.  In  Godson  v. 
Home,  1  Brod.  &  B.  7,  one  Noah  solicited 
the  plaintiff  to  be  his  attorney  in  an  ac- 
tion. The  defendant,  apparently  a  total 
stranger,  wrote  to  Noah,  to  deprecate 
his  so  employing  the  plaintiff,  and  this 
was  held  to  be  clearly  not  a  confidential 
or  privileged  communication.  In  Storey 
V.  Challands,  8  Car.  &  P.  2:J4.  one  Ilersford 
was  about  to  deal  with  the  plaintiff,  when 
he  met  the  defendant,  who  said  at  once, 
without   his   opinion   being   asked  at  all, 


"If  you  have  anything  to  do  with  Storey 
you  will  live  to  repent  it.  He  is  a  most 
unprincipled  man, "etc.;  and  Lord  Den- 
man  directed  a  verdict  for  the  plaintiff,  be- 
cause the  defendant  began  by  making  the 
statement  without  waiting  to  be  asked. 
In  York  v.  Johnson,  116  Mass.  4S2,  the 
defendant,  a  member  of  a  church,  was 
appointed,  with  the  plaintiff  and  other 
members  of  the  church,  on  a  committee 
to  prepare  a  Christmas  festival  for  the 
Sunday-school.  He  declined  to  serve, 
and,  being  asked  his  reason  by  Mrs.  New- 
ton, a  member  of  the  committee,  said 
that  a  third  member  of  the  committee, 
a  married  man,  had  the  venereal  disease, 
and,  being  asked  where  he  got  it  said  he 
did  not  know,  but  that  "he  had  been  with 
the  plaintiff,"  who  was  a  woman;  and 
it  was  held  that  this  was  not  a  privileged 
communication.  There  was  no  question 
of  the  defendant's  good  faith  and  reason- 
able grounds  of  belief  in  making  the  com- 
munication, and  yet  Devens,  J.,  in  the 
opinion  said:  "The  ruling  requested  by 
the  defendant,  that  the  communication 
made  by  him  to  Mrs.  Newton  was  a  priv- 
ileged one,  and  not  actionable  except 
with  proof  of  express  malice,  was  proper- 
ly refused.  There  was  no  duty  which  he 
owed  to  Mrs.  Newton  that  authorized 
him  to  inform  her  of  the  defamatory 
charges  against  the  plaintiff,  and  no  inter- 
est of  his  own  which  required  protection 
justified  it.  He  had  declined  to  serve  up- 
on the  same  committee  with  Mrs.  York, 
but  he  was  under  no  obligation  to  give 
any  reason  therefor,  however  persistently 
called  upon  to  do  so,  and,  even  if  Mrs. 
Newton  had  an  interest  in  knowing  the 
character  of  Mrs.  York  as  a  member  of 
the  same  church,  it  was  an  interest  of 
the  same  description  which  every  mem- 
ber of  the  community  has  in  knowing  the 
character  of  other  members  of  the  same 
community  with  whom  they  are  necessa- 
rily brought  in  contact,  and  would  not 
shield  a  person  who  uttered  words  other- 
wise slanderous. " 

Having  thus  stated  the  general  princi- 
ples of  law  applical)le  to  a  case  like  this, 
I  will  now  bring  to  mind  the  facts  of 
this  case  so  far  as  they  pertain  to  the  de- 
famatory letter.  The  plaintiff  was  a  law- 
yer, and  had  been  engaged  in  the  practice 
of  liis  professsion  at  Caledonia  for  several 
months,  and  resided  there  at  the  date  of 
the  letter.  Miss  Dora  McNaughton  and 
the  defendant  also  resided  there.  The 
plaintiff  was  on  terms  of  social  intimacy 
with  Dora,  and  was  paying  her  attention 
with  a  view  to  matrimony, and  sometime 
subsequently  married  her.  Mrs.  Collins 
was  about  twenty-five  years  old,  two 
years  and  a  half  younger  than  Dora,  and 
was  married  November  2,  1875;  and  prior 
to  that  she  had  always  resided  within  a 
mile  and  a  half  from  the  residence  of 
Dora,  and  they  had  been  very  intimate 
friends.  Dora  had  a  father,  and  no  broth- 
er, and  Mrs.  Collins  had  a  brother.  Dur- 
ing the  time  of  this  intimacj',  and  at  some 
time  before  the  marriage  of  Mrs.  Collins, 
Dora  repeatedly  requested  of  her  that  if 
she  "knew  anything  about  any  young 
man  she  went  with,  or  in  fact  any  young 
man  in  the  jjlSce,    to   tell  her,  because  her 


SLANDER  AND  LIBEL. 


141 


father  did  not  go  out  a  great  deal,  and 
liad  no  means  of  knowing,  and  people 
would  not  be  apt  to  tell  him;"  tliat  Khe, 
Mrs.  Collins,  had  a  brother,  and  would 
be  more  apt  to  hear  what  was  said  about 
young  men,  and  Dora  wished  her  to  tell 
what  she  knew.  Their  intimacy  con- 
tinued after  the  marriage  of  Mrs.  Collins 
until  January  before  the  letter  was  writ- 
ten, when  a  coldness  sprang  up  between 
them.  They  became  somewhat  estranged, 
and  their  intimacy  ceased.  Mrs.  Collins 
testified  that  when  she  wrote  the  letter 
she  thought  just  as  much  of  Dora  as  if 
she  had  belonged  to  her  family;  that  she 
liad  heard  the  defamatory  rumors,  and  be- 
lieved them,  and  therefore  did  not  wish 
her  to  marry  the  plaintiff.  It  must  be 
observed  that  the  request  of  Dora  to  Mrs. 
Collins  for  information  about  young  men 
was  not  made  when  she  was  contemplat- 
ing marriage  to  any  young  man,  and  that 
the  request  was  not  for  information  about 
any  paiticular  young  man,  or  about  any 
young  man  in  whom  she  had  any  interest, 
but  it  was  for  information  about  the 
young  men  generally  with  whom  she  as- 
sociated. Nor,  literally  construing  the 
language,  did  Dora  wish  for  information 
•as  to  the  gossip  and  rumors  afloat  as  to 
young  men.  What  she  asked  for  was 
such  facts  as  Mrs.  Collins  knew,  and  not 
for  her  opinion  about  young  men,  or  her 
estimation  of  them.  But  if  we  assume 
that  the  request  was  for  information  as  to 
all  the  rumors  about  young  men  which 
came  to  the  knowledge  of  Mrs.  Collins, 
the  case  of  the  defendant  is  not  improved. 
At  that  time  the  plaintiff  was  not  within 
Dora's  contemplation,  as  she  did  not  know 
him  until  long  after.  The  request  was 
not  for  information  as  to  any  young  man 
who  might  pay  her  attention  with  a  view 
to  matrimony,  it  was  for  information 
about  all  the  young  men  in  her  circle. 
Mrs.  Collins  was  not  related  to  her,  and 
was  under  no  duty  to  give  the  informa- 
tion, and  Dora  had  no  sufficient  interest 
to  receive  the  information.  Mrs.  Collins 
was  under  no  greater  duty  to  give  the 
information  to  Dora  than  to  anj-  of  the 
other  young  ladies  of  her  acquaintance  in 
the  same  circle.  She  could  properly  tell 
what  she  knew  about  young  men,  but 
could  not  defame  them  even  upon  request 
by  telling:  what  she  did  not  know,  what 
nobody  knew,  but  what  she  believed  upon 
mere  rumorvSt  and  hearsay  to  be  true,  'I'he 
mere  fact  that  she  was  requested  or  even 
urged  to  give  the  information  did  not 
make  the  defamatorj'  communication 
privileged.     York  v.  Johnson,  supra. 

But  there  is  no  proof  that  this  letter 
was  written  to  Dora  in  jiursuance  of  any 
request  made  b^-  her  four  years  before  its 
date,  and  there  was  no  evidence  which  au- 
thorized the  jur^-  to  find  so,  if  they  did  so 
find.  On  the  contrary,  it  is  clear  that 
Dora  would  not  at  the  time  have  gone  to 
Mrs.  Collins  for  any  information  as  to  the 
plaintiff  if  she  had  desired  any.  and  that 
she  did  not  wish  for  the  information  from 
her;  and  that  this  was  known  to  Mrs. 
Collins  the  language  of  the  letter  clearly' 
shows.  In  tlie  defendniit's  answer  it  is  al- 
leged that  Mrs.  Collins"  letter  was  prompt- 
•ed   by  her  friendship  for  Dora,  and  by  the 


solicitations  of  "mutual  friends  to  inter- 
fere in  the  matter  and  break  off  the  rela- 
tions which  seemed  to  exist  between  the 
plaintiff  and  Dora,"  and  there  is  no  aver- 
ment that  it  was  written  in  pursuance  of 
any  request  coming  from  Dora.  The  let- 
ter itself,  as  well  as  the  evidence  of  Mrs. 
Collins,  shows  unmistakably  that  it  was 
thus  prompted.  Mrs.  Collins  did  not  tes- 
tify that  she  wrote  the  letter  in  pursuance 
of  any  request  of  Dora,  and  the  action  was 
not  tried  upon  that  theory,  and  no  ques- 
tion as  to  the  request  was  submitted  to 
the  jury.  The  trial  judge  charged  the  jury 
broadly  that  if  the  relations  of  Dora  and 
Mrs.  Collins  were  of  such  an  intimate 
character  as  to  warrant  the  latter  in 
warning  the  former  "against  a  person 
whom  she  had  reason  to  believe  was  not 
a  fit  person,  and  if  Mrs.  Collins  acted  fair- 
ly, in  good  faith,  conscientiously,  although 
mistakenlj',  there  can  be  no  recovery 
against  her"  upon  the  count  in  the  com- 
plaint for  libel ;  and  then  the  court  said: 
"Did  Mrs.  Collins,  in  writing  that  letter, 
act  fairly,  act  judiciously,  not  in  the  mat- 
ter of  good  taste,  but  did  she  with  the 
facts  which  had  been  brought  to  her  mind 
act  in  a  conscientious  and  proper  manner? 
If  she  did,  if  she  acted  as  an  ordinarily  pru- 
dent person  would  act  under  the  same  cir- 
cumstances, if  she  had  probable  ground 
for  her  belief,  she  was  justified  in  writing 
the  letter.  "  Mrs.  Collins  then  appears  as 
a  mere  volunteer,  writing  the  letter  to 
break  up  relations  which  she  feared  might 
lead  to  the  marriage  of  the  plaintiff  to 
Dora.  If  she  had  been  the  mother  of  Dora, 
or  other  near  relative,  or  if  she  had  been 
asked  by  Dora  for  information  as  to  the 
plaintiff's  character  and  standing,  she 
could  with  propriety  have  given  anj'  in- 
formation she  possessed  affecting  his  char- 
acter, provided  she  acted  in  good  faith, 
and  without  malice.  But  a  mere  volun- 
teer, having  no  duty  to  perform,  no  inter- 
est to  subserve,  interferes  with  the  rela- 
tions between  tw^o  such  people  at  her 
peril.  The  rules  of  law  should  not  be  so 
administered  as  to  encourage  such  inter- 
meddling, which  may  not  only  blast  repu- 
tation, but  possibly-  wreck  lives.  In  such 
a  case  the  duty  not  to  defame  is  more 
pressing  than  the  duty  to  communicate 
mere  defamatory  rumcjrs  not  known  to 
be  true. 

Some  loose  expressions  may  doubtless 
be  found  in  text-books  and  judicial  opin- 
ions supporting  the  contention  of  the  de- 
fendant that  this  letter  was  in  some  sense 
a  privileged  communication.  But  after  a 
very  careful  research  I  believe  there  is 
absolutely  no  reported  decision  to  that 
effect.  The  case  which  is  as  favorable  to 
the  defendant  as  anj',  if  not  more  favora- 
ble than  any  other,  is  that  of  Todd  v. 
Hawkin.s.  8  Car.  &  P.  8S.  In  that  case  a 
widow  being  about  to  maiTy  the  plain- 
tiff, the  defendant,  who  had  married  her 
daughter,  wrote  her  a  letter  containing 
imjiutations  on  the  plaintiffs  character, 
and  advising  a  diligent  and  extensive  in- 
quiry into  his  character;  and  it  was  held 
that  the  letter  was  written  on  a  justifiable 
occasion,  and  that  the  defendant  was  jus- 
tified in  writing  it.  provided  the  jury  were 
satisfied  that  in  writing  it  he  acted  boua. 


142 


LAW  OF  TORTS. 


fide,  although  the  imputations  contained 
in  the  letter  were  false,  or  based  upon  the 
most  erroneous  information,  and  if  he 
used  expressions  however  harsh,  hasty, 
or  untrue,  yet  bona  Sde,  and  believing 
them  to  be  true,  he  was  justified  in  so  do- 
ing. The  letter  was  held  privileged  solely 
upon  the  ground  of  the  near  relationship 
existing  between  the  widow  and  the  de- 
fendant, her  son-in-law,  which  justified  his 
voluntai-y  interference.  But  the  judge  ex- 
pressly stated  that  if  the  widow  and  defend- 
ant bad  been  strangers  to  each  other  there 
would  have  been  a  mere  question  of  dam- 
age. A  case  nearer  in  point  is  that  of  Count 
Joannes  v.  Bennett,  5  Allen,  169.  There  it 
was  held  that  a  lettertoa  womancontain- 
ing  libelous  matter  concerning  her  suitor 
cannot  be  justified  on  the  ground  that  the 
writer  was  her  friend  and  former  pastor, 
and  that  the  letter  was  written  at  the  re- 
quest of  her  parents,  who  assented  to  all 
its  contents.  The  decision  was  put  upon 
the  ground  that  in  writing  the  letter  the 
defendant  had  no  interest  of  his  own  to 
serve  or  protect;  that  he  was  not  in  the 
exercise  of  any  legal  or  moral  dutj^;  that 
the  proposed  marriage  did  not  even  in- 
volve any  sacrifice  of  his  feelings  or  injury 
to  his  affections,  and  did  not  in  any  way 
interfere  with  or  disturb  his  personal  or 
social  relations;  tliat  the  person  to  whom 
the  letter  was  addressed  was  not  con- 
nected with  him  by  the  ties  of  consan- 
guinity or  kindred,  and  that  he  had  no 
peculiar  interest  in  her.  Some  years  before, 
the  same  learned  court  decided  the  case  of 
Krebs  v.  Oliver,  12  Gray,  239,  wherein  it 
was  held  that  statements  that  a  man  has 
been  imprisoned  for  larceny,  made  to  the 
family  of  a  woman  whom  he  is  about  to 
marry,  by  one  who  is  no  relation  of  either, 
and  not  in  answer  to  an  inquiry,  are  not 
privileged  communications.  In  the  opin- 
ion it  is  said  :  "A  mere  friendly  acqunint- 
ance  or  regard  does  not  impose  a  duty  of 
communicating  charges  of  a  defamatory 
character  concerning  a  third  person,  al- 
though they  may  be  told  to  one  who  has 
a  strong  interest  in  knowing  them.  The 
duty  of  refraining  from  the  utterance  of 
slanderous  words  without  knowing  or  as- 
certaining their  truth  far  outweighs  any 
claim  of  mere  friendship."  I  am  therefore 
of  opinion  that  the  letter  w^as  in  no  sense, 
upon  the  facts  as  they  appear  in  the  rec- 
ord, a  privileged  communication. 

There  was  also  error  iu  the  court  below 
as  to  the  verbal  slanders  alleged  in  the 
second  cause  of  action;  and  what  I  have 
already  said  applies  in  part  to  these  verbal 
slanders.  There  was  no  substantial  denial 
of  these  slanders  in  tlie  answer,  and  thereis 
no  dispute  in  the  evidence  that  they  were 
uttered,  and  there  can  beno  claim  upon  the 
evidence  that  they  were  justified.  The 
trial  judge  charged  the  jury  that  the  words 
were  slanderous.  But  he  said  to  them 
that  "there  is  not  that  presumption  of 
malice  in  the  case  of  oral  slanders  that 
there  is  in  the  case  of  a  deliberate  writing. " 
This  was  excepted  to  by  plaintiff's  coun- 
sel, and  was  clearly  erroneous.  In  the 
case  c>f  oral  defamation,  as  in  the  case  of 
written,  if  the  words  uttered  were  not 
privileged  the  law  implies  malice.  The 
judge  further  charged    the  jury,  in  sub- 


stance, that  the  words,  if  uttered  under 
the  circumstances  testified  to  bj^  Mrs.  Col- 
lins, were  privileged.  She  testified,  in  sub- 
stance, that  she  uttered  the  words  to  Mr. 
Cameron  in  confidence,  after  the  most  ur- 
gent solicitation  on  his  part  that  she 
should  tell  him  what  she  knew  about  the 
plaintiff.  But  defamatory  words  do  not 
become  privileged  merely  because  uttered 
in  the  strictest  confidence  by  one  friend  to 
another,  nor  because  uttered  upon  the 
most  urgent  solicitation.  She  was  under 
no  duty  to  utter  them  to  him,  and  she 
had  no  interest  to  subserve  by  uttering 
them.  He  had  no  interest  or  duty  to  hear 
the  defamatory  words,  and  had  no  right 
to  demand  that  he  might  hear  them  ;  and- 
under  such  circumstances  there  is  no  au- 
thority holding  that  any  privilege  attach- 
es to  such  communications.  There  was 
no  evidence  that  would  authorize  a  jury 
to  find  that  Cameron  sought  the  intervievr 
with  Mrs.  Collins  as  an  emissary  from  or 
agent  of  the  plaintiff,  or  that  at  the  plain- 
tiff's solicitation  or  instigation  he  ob- 
tained the  slanderous  communications 
from  her;  and  he  did  not  profess  or  as- 
sume to  act  for  him  on  that  occasion.  He 
was  the  mutual  friend  of  the  parties,  and 
seems  to  have  sought  the  interview  with 
her  either  to  gratify  his  curio.sity,  or  to 
prevent  the  impending  litigation  between 
the  parties.  But,  even  if  he  obtained  the 
interview  with  her  at  the  solicitation  of 
the  plaintiff  and  as  his  friend,  she  could 
not  claim  that  her  slanderous  words  ut- 
tered at  such  interview  were  privileged. 
The  trial  judge  therefore  erred  in  refusing 
to  charge  the  jurj'  that  there  was  no  ques- 
tion for  them  as  to  the  second  cause  of  ac- 
tion but  one  of  damages. 

Therefore,  without  noticing  other  excep- 
tions to  rulings  upon  the  trial,  for  the  fun- 
damental errors  herein  pointed  out  the 
judgment  should  be  reversed,  and  a  new 
trial  granted. 

All  concurred,  except  Danforth,  J.,, 
who  dissented. 


(46  N.  Y.  188.) 
SuNDERLiN  et  a/.  V.  Bradstreet  et  a/. 

{Court  of  Appeals  of  New  York.     Sept.  7, 1871.)- 

Libel  —  Privileged  Communications  —  Mercan- 
tile  ACiEXCY. 

Proprietors  of  a  mercantile  agency,  whose  bus- 
iness is  collecting  and  communicating  to  sub- 
scribers information  as  to  the  character,  credit,, 
and  pecuniary  responsibility  of  merchants,  are- 
liable  for  a  false  and  injurious  report  of  the  fail- 
ure of  certain  merchants,  published  and  circu- 
lated among  all  the  subscribers;  as  such  a  com- 
munication is  privileged  only  when  made  in  good' 
faith,  to  one  having  an  interest  in  the  informa- 
tion. That  the  libelous  statement  was  in  cipher, 
understood  by  the  subscribers  only,  is  not  ma- 
terial. 

Appeal  from  supreme  court,  general' 
term,  seventh  judicial  district. 

Action  by  Lewis  Sunderlin  and  others 
against  Henry  Bradstreet  and  others  for- 
libel.  Defendants,  proprietors  of  a  mer- 
cantile agency,  published  and  circulated 
among  the  subscribers  to  their  agencj' a  re- 
port that  plaintiffs,  who  were  merchants, 
had  failed.  The  report  was  admitted  to- 
be  false.  At  the  trial,  a  verdict  was  ren- 
dered for  plaintiffs,  and  defendants'  excep- 


SLANDER  AND  LIBEL. 


143 


tious  were  ordered  to  be  heard  in  the  first 
instance  at  the  general  term,  which  over- 
ruled the  exceptions,  and  directed  judg- 
ment for  plaintiffs  on  the  verdict.  Defend- 
ants appealed  from  the  judgment. 

Deliivun  F.  Clark,  for  appellants.  W.  i . 
Cogswell,  for  respondents. 

Allen,  J.  The  only  question  presented 
by  the  appeal  has  respect  to  the  character 
and  occasion  of  the  publication  of  the  al- 
leged libel,  and  is,  whether  the  circum- 
stances and  occasion  of  the  publication 
were  such  as  to  absolve  the  defendants 
from  liability,  in  the  absence  of  proof  of 
express  malice;  that  is,  whether  it  is 
within  the  protection  of  privileged  com- 
munications. We  might  properly  decide 
this  question  upon  the  authority  cf  Tay- 
lor V.  Church,  8  N.  Y.  452,  in  which  this 
precise  question  was  determined  by  a 
unanimous  court,  seven  judges  taking 
part  in  tlie  decision,  the  other  judge  re- 
fraining from  expressing  an  opinion,  for 
the  reason  that  he  was  not  present  at 
the  argument.  The  poiut  was  made  upon 
the  trial  of  the  action,  and  presented  by 
counsel  upon  appeal  in  this  court,  and 
was  material  to  be  decided  for  the  guid- 
ance of  the  court  below,  upon  a  retrial 
which  tliis  court  ordered,  inasmuch  as,  if 
the  publication  was  privileged,  it  would 
probably  be  fatal  to  the  plaintiff's  cause 
of  action,  and  the  court,  by  a  deliberate 
and  formal  resolve,  adjudged  that  the  al- 
leged libel  was  not  a  privileged  communi- 
cation. The  circumstances  under  which 
this  judgment  was  giv'en,  as  well  as  the 
method  adopted  by  the  judges  in  determin- 
ing this  precise  question  by  a  formal  dec- 
laration, entitle  the  decision  to  peculiar 
weight  as  an  authority.  That  case  can- 
not be  distinguished  from  this  in  any  cir- 
cumstance favorable  to  the  defendant. 

The  decision,  as  abstracted  by  the  re- 
porter,  was  that  "one  who  undertakes, 
for  an  association  of  merchants  in  New 
York,  to  ascertain  the  pecuniary  stand- 
ing of  merchants  and  traders  residing  in 
other  places,  who  are  customers  of  some 
of  the  members  of  the  association,  and 
who  furnishes  reports  to  all  the  members 
of  the  association,  irrespective  of  the  ques- 
tion whether  they  have  an  interest  in 
the  question  of  the  standing  of  such  mer- 
chants and  traders,  is  liable  for  any  false 
report  made  by  him  prejudicial  to  the 
credit  of  the  subject  of  it,  although  made 
honestly,  and  from  information  upon 
which  he  relied."  In  the  case  before  us,  the 
defendants  were  in  no  sense  the  agents  of 
an  association  of  merchants,  or  of  their 
patrons.  Of  their  own  volition,  and  for 
their  own  profit,  they  established  a  bureau 
for  collecting  and  disseminating  informa- 
tion as  to  the  character, credit,  and  pecun- 
iary responsibility  of  merchants  and 
traders  throughout  the  United  States.  The 
business  is  in  the  nature  of  an  intelligence 
office;  and  it  is  not  intended  by  this  to  in- 
timate that  it  is  not  an  entirely  lawful 
and  reputable  business:  or  that  it  is  not 
of  general  utility  ;  or  perhaps  a  necessity 
to  the  commerce  and  business  of  the 
country.  All  may  be  conceded  that  is 
claimed  for  it  by  itsfriends  ;  but  in  its  con- 
duct   and   management  it  must  be  sub- 


jected to  the  ordinary  rules  of  law,  and  its 
proprietors  and  managers  held  to  the  lia- 
bility which  the  law  attaches  to  like  acts 
by  others.  The  information  acquired  by 
them  was  their  own,  and  was  communi- 
cated to  others  or  made  public  in  such 
form  and  upon  such  terms  as  the  defend- 
ants dictated.  In  the  established  course 
of  their  business,  they  communicated  with 
their  patrons  by  means  of  semi-annual 
publications,  with  weekly  corrections 
printed  and  furnished  to  each;  the  number 
of  copies  of  each  publication  being  about 
10,000,  distributed  to  every  part  of  the 
countri",  among  merchants,  bankers,  and 
traders.  The  alleged  libel  was  published 
in  one  of  the  weekly  corrections  of  the  reg- 
ular semi-annual  publications,  and  was 
thus  extensively  circulated.  Its  distribu- 
tion was  general  among  all  thesubscribers 
to  the  defendants'  publications,  irrespect- 
ive of  their  interest  in  the  question  of  the 
plaintiffs'  credit  and  standing. 

Whether  a  libel  or  slander  is  within  the 
protection  accorded  to  privileged  com- 
munications depends  upon  the  occasion  of 
the  publication  or  utterance,  as  well  as 
the  character  of  the  communication.  The 
party  must  have  a  just  occasion  for  speak- 
ing or  publishing  the  defamatory  matter. 
A  communication  is  privileged,  within  the 
rule,  when  made  in  good  faith,  iu  answer 
to  one  having  an  interest  in  the  informa- 
tion sought;  and  it  will  be  privileged  if 
volunteered  when  the  party  to  whom  the 
communication  is  made  has  an  interest  in 
it,  and  the  party  by  whom  it  is  made 
stands  in  such  relation  to  him  as  to  make 
it  a  reasonable  duty,  or,  at  least,  proper 
that  he  should  give  theiuformation.  Todd 
V.  Hawkins,  K  Car.  &  P.  8S;  r'ockayue  v. 
Hodgkisson,5  Car.  &  P.  543;  Washburn  v. 
Cooke,  '6  Denio,  110;  per  Selden,  .1..  Lewis 
V.  Chapman,  16  X.  Y.  369.  It  is  not  neces- 
sary to  go  further  in  this  case;  and  it  may 
be  assumed  that,  if  any  one  having  an  in- 
terest in  knowing  the  credit  and  standing 
of  the  plaintiffs,  or  whom  the  defenflants 
supposed  and  believed  had  such  interest, 
had  made  the  inquiry  of  the  defendants, 
and  the  statement  in  the  alleged  libel  had 
been  made  in  answer  to  the  inquiry  in 
good  faith,  and  upon  information  upon 
which  the  defendants  relied, it  would  have 
been  privileged.  This  was  the  case  of 
Ormsby  v.  Douglass,  37  N.  Y.  477  The 
business  of  the  defendant  in  that  action 
was  of  a  similar  character  to  that  of  the 
present  defendants;  and  the  statement 
complained  of  was  made  orally,  to  one 
interested  in  the  information,  upon  per- 
sonal application  at  the  office  of  the  de- 
fendant, who  refused  to  make  a  written 
statement.  There  was  no  other  publica- 
tion, and  it  was  held  that  the  occasion 
justified  the  defendant  in  giving  sucli  in- 
formation as  he  possessed  to  the  appli- 
cant. Taylor  v.  Church  was  referred  to  as 
authority  for  the  rule,  and,  so  far  from 
being  overruled  or  questioned,  was  af- 
firmed. The  decision  in  Taylor  v.  Church 
j  was  placed  upon  the  ground  that  the  al- 
leged libel  was  printed  by  the  procurement 
'  of  the  defendant,  and  distributed  by  him 
to  persons  having  no  special  interest  in 
j  being  informed  of  the  condition  of  the 
plaintiffs'  firm.    In   the  case  at  bar,  it  is 


144 


LAW  OF  TORTS. 


not  pretended  but  that  few,  if  any,  of  the 
persons  to  whom  the  10,000 copies  of  the  li- 
belous publication  were  transmitted  had 
any  interest  in  the  character  or  pecuniary 
responsibility  of  the  plaintiffs,  and  to 
those  who  had  no  such  interest  there  was 
no  just  occasion  or  propriety  in  communi- 
cating the  information.  The  defendants, 
in  making  the  communication,  assumed 
the  legal  responsibility  which  rests  upon 
all  who,  without  cause,  publish  defama- 
tory matter  of  others;  that  is,  of  proving 
the  truth  of  the  publication,  or  responding 
in  damages  to  the  injured  party.  The 
■communication  of  the  libel  to  those  not 
interested  in  the  information  was  ofiicious 
and  unauthorized,  and  therefore  not  pro- 
tected, although  made  in  the  beliaf  of  its 
truth,  if  it  were,  in  point  of  fact,  false. 
When  a  communication  is  made  in  the 
discharge  of  some  public  or  private  duty, 
the  occasion  prevents  the  inference  of  mal- 
ice which  the  law  draws  from  unauthor- 
ized communications,  and  affords  a  quali- 
fied defense,  depending  on  the  absence  of 
malice.  Toogood  v.  Spyring,  1  Cromp.  M. 
&  E.  181 ;  Fowles  v.  Bowmen,  30  N.  Y.  20 
There  has  been  no  diversit3'  in  the  utter- 
ances of  judges  and  courts  upon  the  sub- 
ject, but  all  have  spoken  onelanguage.  See 
Beardsley  v,  Beardsley,  5  Blatchf.  498.  In 
those  eases  in  which  the  publication  has 
been  held  privileged,  the  courts  have  held 
that  there  wasareasonableoccasionorexi- 
gency,  which,  for  the  common  convenience 
and  welfare  of  society,  fairly  warranted 
the  communication  as  made.  But  neither 
the  welfare  nor  convenience  of  society  will 
be  promoted  by  bringing  a  publication  of 
matters,  false  in  fact,  injuriously  affecting 
the  credit  and  standing  of  merchants  and 
traders,  broadcast  through  the  land,  with- 
in the  protection  of  privileged  communi- 
cations. The  principle  of  Taylor  v. Church 
is  recognized  in  all  the  cases.  Harris  v. 
Thompson,  13  C.  B.  333;  Van  Wyck  v.  As- 
pinwall,  17  N.  Y.  190;  Harrison  v.  Bush,  5 
El.  &  Bl.  344;  Goldstein  v.  Foss,  6  Barn.  & 
C.  158;  Getting  v.  Foss,  3  Car.  &  P.  160. 
That  face  that  the  libelous  statement  was 
in  cipher  is  not  material.  It  was  in  lan- 
guage understood  by  the  numerous  pa- 
trons of  the  defendants  and  all  the  sub- 
scribers to  the  publications.  They  had 
the  key  to  the  cipher,  and  the  publication 
was  equally  significant  and  injurious  as 
if  made  in  the  distinct  terms,  in  the  very 
words,  indicated  by  the  numeral  figures 
used.    The  judgment  should   be  affirmed. 

All  concur. 

Judgment  affirmed. 


(123  N.  Y.  445,  '35  N.  E.  Rep.  919.) 

Woods  v.  Wiman. 

iCourt  of  Appeals  of  New  York,  Second  Divis- 
ion.     Dec.  2, 1890. ) 

Publication  of  Libel — Privileged  Communica- 
tions— Influencing  Action  of  Public  Offi- 
cer. 
In   an  action   for   libel   by  distributing   pam- 
phlets containing  defamatory  matter,  it  appeared 
that  defendant  gave  such  a  pamphlet  to  the  gov- 
■ernor  of  the  state,  in  order   to    influence  him  re- 
garding a  bill  which  had   passed  tlie  legishxture, 
but  there  was   also   some   evidence   that  defend- 
ant, at  the  same   time,  gave   such   pamphlets    to 
other  persons.    Held,  that  the  question  of  publi- 


cation should  have  been  left  to  the  jury,  sine© 
the  giving  such  pamphlets  to  third  persons  would 
not  be  privileged.     47  Hun,  362,  reversed. 

Appeal  from  a  judgment  of  the  general 
term  of  the  second  judicial  department, 
affirming  a  judgment  dismissing  the  com- 
plaint. 

When  the  bill  which  became  chapter  672 
of  the  Laws  of  1886,  relating  to  imprison- 
ment for  debt,  was  pending  in  the  legis- 
lature, Mr.  Edward  P.  Wilder,  a  lawyer, 
published  a  pamphlet  in  opposition  to  its 
passage.  Mr.  Gilbert  R.  Hawes,  a  lawyer, 
was  retained  by  the  debtors  imprisoned  in 
Ludlow-Street  jail  to  advocate  the  pas- 
sage of  the  measure,  and,  to  advance  this 
purpose,  one  McDonald,  then  imprisoned 
in  that  jail  on  an  execution  against  his 
person,  took  from  his  fellow-prisoners 
statements  of  the  causes  and  circumstan- 
ces of  their  confinement,  which  he  reduced 
to  writing,  and  delivered  to  Mr.  Hawes. 
A  few  copies  of  these  statements  were 
printed  in  a  pamphlet  bearing  this  title: 
"Prisoners  now  in  Ludlow-Street  jail. 
A  true  statement  of  the  facts  in  each  case 
where  a  party  has  been  imprisoned  for 
debt.  In  answer  to  the  pamphlet  issued 
by  E.  P.  Wilder."  The  pamphlet  con- 
tained the  following,  among  other,  state- 
ments: "In  re  Terrence  Monett.  About 
nine  years  ago  sued  on  breach  of  promise 
to  marry,  which  he  never  made.  An  open 
secret  that  plaintiff  had  similar  relations 
for  money  with  five  or  six  others  ;  but,  be- 
ing married  men,  their  evidence  unattain- 
able at  trial.  Sympathy  for  her  sex. 
Av.'arded  -fO.OOO  damages.  His  interest 
sold  by  shei'iff  at  sale,  and  bought  by 
plaintiff  for  $5,500.  The  matter  then  slept 
for  eight  years,  when  an  attorney,  a  friend 
of  plaintiff,  dug  it  up.  Both  plaintiff  and 
defendant  had  always  lived  in  Brooklyn, 
and  still  so  in  December,  1884,  and  the  suit 
and  judgment  had  in  Brooklyn  court. 
Instead  of  issuing  execution  against  him 
where  they  both  lived,  and  where  the 
court  was  that  granted  judgment,  they 
had  him  decoyed  from  Brooklyn  to  New 
York,  whither  they  had  brought  over  the 
execution  against  the  person,  thus  cutting 
off  from  bail  in  place  of  domicile;  further 
embarrassing,  as  New  York  sheriff  re- 
quires bondsmen  within  his  limits.  Also 
saved  plaintiff  expense  of  support  in  Brook- 
lyn jail,  and,  to  increase  disadvantages  of 
defendant,  omitted  to  credit  him,  on  judg- 
ment, with  $5,500,  bid  for  his  interest  in 
property  at  sheriff's  sale  by  plaintiff  eight 
years  before,  so  he  was  thus  arrested  on 
full  amount,  $6,000,  of  judgment.  Thus 
debarred  from  ability  to  give  bail.  Has 
been  eighteen  months  in  jail.  On  trying 
to  go  out  under  fourteen  day  act,  could 
not  produce  written  vouchers  for  expendi- 
ture of  afew  hundred  dollars  eight  or  nine, 
years  ago;  so  judgesaid  oral  evidence  was 
not  sufficient,  and  denied  application.  His 
wife's  friends  offer  to  subscribe  balance 
really  due  on  judgment,  but  plaintiff  says 
that,  as  she  cannot  have  him,  bis  wife 
(now  of  nine  years)  shall  not.  So  this 
kind  of  a  woman  actually  separates  man 
and  wife  to  be  gratified  in  her  spiteful  feel- 
ings; but,  worst  of  all,  public  law  aids 
such."  The  bill  excited  much  public  inter- 
est and  discussion,  and  a  committee   was 


SLANDER  AND  LIBEL. 


145 


appointed,  of  Avhicli  the  defendant  was  I  ernor  for  the  purpose  of  influencing  his  ac- 
chairman,  to  advocate  its  passage  and  |  tion  on  a  bill  which  has  passed  the  legis- 
approval   bj'  the  executive.     After  the  bill  \  lature  is  prima  facie  privileged  ;  but,  if  the 


had  passed  the  legislature,  the  governor 
tixed  a  day  for  hearing  a  public  discussion 
of  its  merits.  For  the  jjurpose  of  influenc- 
ing the  executive  action,  and  as  an  an- 
swer to  the  pamphlet  put  forth  by  Mr. 
Wilder,  a  few  copies  of  the  statements  of 
the  prisoners,  as  taken  by  Mr.  McDonald, 
were  carried  to  the  capitol,  and  one  of 
them  was  submitted  by  the  defendant  to 
the  executive  with  resolutions  adopted  hy 
the  chamber  of  commerce,  and  a  memorial 
signed  by  several  hundred  of  the  citizens 
of  New  York  and  Brooklyn  advocating  the 
bill.  It  is  alleged  in  behalf  of  the  plaintiff 
that  the  defendant  gave  a  copy  of  the 
pamphlet  to  thegoveriior,  and  distributed 
several  copies  to  persons  in  the  executive 
chamber,  for  which  alleged  publications 
she  seeks  to  recover  damages.  On  the 
trial,  the  plaintiff  was  nonsuited,  upon 
which  a  judgment  was  entered,  which 
was  affirmed  at  general  term. 

J.  Stewart   Ross,  for  appellant.     W 
MacFarlaud,  for  respondent. 


communication  contains  defamatory  mat- 
ter, and  is  unnecessarily  published  to 
others,  such  publication  is  not  privileged. 
Coflin  V.  Coflin,  4  Mass.  1  ;  Rex  v.  Oreevev, 
1  Maule  &  S.  273;  Odgers.  Sland.  &  L.  (2d 
Ed.)  ISO;  Folk.  Starkle,  Sland.  &  L.  202. 
20,");  Newell,  Defam.  471;  Townsh.  Sland. 
&L.  (41h  Ed.)  §  217.  Had  the  pamphlet 
been  given  only  to  the  executive,  we  should 
have  no  ditticult^' in  su.staining  the  judg- 
ment, on  the  ground  that  there  was  no 
evidence  of  malii-e,  without  [jroof  of  which 
an  action  cannot  be  sustained  for  such  a 
publication.  lUit  one  witness  testified 
that  he  saw  the  defendant  give  copies  of 
the  pamphlet  to  persons  in  the  executive 
chamber,  who  did  not  appear  to  have  any 
connection  with  the  hearing,  which  was 
then  being  held;  and,  though  he  was 
strongly  contradicted  by  person.s  who  had 
every  facility  for  observing  what  occurred, 
J  yet  whether  the  defendant  did  distribute 
W.  i  the  pamphlet,  as  testified  by  this  witness, 
was  a  question  of  fact,  and  the  court  erred 


I  in  not  submitting  it  to  the  jury  with  ap- 
FoLLETT,  C.  J.,  (after  statiiifi;'  the  facts  ;  propriate  instructions.  For  this  errorthe 
as  above.)  Whether  the  public  statutes  j  judgment  must  be  reversed,  and  a  new 
of  the  state  shall  be  changed  is  a  matter  I  trial  granted,  with  costs  to  abide  the 
of  general  interest,  and  of  common  con- j  event.  All  concur, 
cern,  and   information   given   to  the  gov-]     Judgment  reversed. 

(See,  also,  Briggs  v.  Garrett,  111  Pa.  St.  404,  2  Atl.  Rep.  513;  Hamilton  v.  Eno,  81  N.  Y.  116;  King 
v.  Patterson,  49  N.  J.  Law,  417,  9  Atl.  Rep.  705;  Kiugsburj^  v.  Bradstreet  Co.,  116  N.  Y.  211,  2:3  N.  E. 
Rep.  3()5;  Proctor  v.  Webster,  16  Q.  B.  Div.  112;  Jenoure  v.  Delmege,  [1S91,]  App.  Cas.  73;  Macdougall 
v.  Knight,  17  Q.  B.  Div.  630;  White  v.  Nicholls,  3  How.  266.) 


2.  Absolute  privilege. 


(123  N.  Y.  420;  25  N.  E.  Rep.  1048.) 

MooRE  V.  MAXur.'fTruEKS'  Nat.  Bank 

ef  al. 

(Comt  of  Appeals  of  New  York.     Dec.  2,  1890.) 

Libel  axd  Slaxdek  —  Privileged  Communica- 
Tioxa — Judicial  Proceedings. 
A  bank  sued  its  cashier  on  his  bond  for  misap- 
propriating its  funds,  and  served  a  bill  of  par- 
ticulars of  the  defalcation  on  defendants'  attor- 
ney in  that  action,  which  charged  the  funds  to 
have  been  misappropriated  "by  collusion  with 
the  teller,  "  and  gave  to  a  representative  of  the 
sureties  on  the  cashier's  bond,  at  his  request,  a 
similar  statement  of  the  defalcation.  There  was 
no  other  publication.  Held,  that  the  statements 
were  not  privileged  communications,  and  were 
prima  facie  a  Tibel  upon  the  teller.  4  N.  Y. 
Supp.  37S,  reversed.  Earl  and  U'Briex,  JJ., 
dissenting. 

Appeal  from  supreme  court,  general 
term,  third  department. 

Action  by  Amasa  11.  Moore  against  the 
Manufacturers'  National  Bank  of  Troy, 
and  Gleason,  its  cashier.  .\  verdict  for 
.f20U  damages  was  returned.  On  appeal 
by  plaintiff  the  judgment  entered  on  such 
verdict  was  affirmed  by  the  general  term, 
(4  N.  Y.  Supp.  37S,)  and  plaintiff  again 
api)eals. 

Matthew  Hale,  for  appellant.  R.  A. 
Parnienter ,  for  resi)ondents. 

A.N'DREWS,  J.     This  is  an  action  for  libel. 

On  the  trial  the  plaintiff  recovered  a  small 

verdict.     He  appealed  to  the  general  term 

from   the  judgment  in  his   own  favor,  on 

CHASE — 10 


the  ground  that  the  trial  judge  admitted 
improper  evidence  <>ffered  by  the  defend- 
ants,and  also  that  he  erroneously' submit- 
ted to  the  jury  the  question  whether  cer- 
tain facts  cdleged  in  the  answer  of  the  de- 
fendants, in  mitigation  of  damages,  exisT- 
!  ed,  although  there  was  an  absence  of  any 
proof  to  sustain  such  allegations.  It  is 
claimed  that  by  reason  of  these  errors 
the  plaintiff  was  prejudiced  in  respect  to 
the  award  of  damages.  There  is,  we 
think,  no  doubt  that  errors  were  commit- 
ted by  the  trial  judge  in  the  respects  men- 
tioned. The  plaintiff  is  therefore  entitled 
to  a  new  trial  unless  the  defendants  is 
right  in  his  contention  that  the  alleged 
libel  was  a  privileged  publication,  and 
therefore  no  ivcovery  whatever  was  justi- 
fied. It  will  be  sufficient  to  state  very 
briefly  the  facts  upon  which  the  action  is 
based,  in  order  to  present  the  question  to 
be  determined.  In  1SS3  the  Manufactur- 
ers' National  Bank  of  Troy,  claiming  that 
its  cashier  had  misapproiiriated  and  em- 
bezzled the  property  and  funds  of  the  in- 
stitution, brougiit  an  action  on  the  cash- 
ier's bond  against  the  surviving  surety 
and  the  representatives  of  a  deceased  sure- 
ty to  recover  the  amount  of  the  alleged 
defalcation.  The  agent  of  some  of  the  de- 
fendants in  tne  action  thereupon  api)lied 
in  writing  to  the  attorneys  of  the  bank 
for  a  statement  of  th3  claim.  This  was 
furnished,  but  not  in  detail,  and  the  agent 
of  the    sureties,   desiring    fuller    informa- 


146 


LAW  OF  TORTS. 


tion,  called   at   the  banking-house  of  the 
bank,  and    there   had   an   interview    with 
the  casliier,  and   requested   him  to  furnisli 
as  particular  and  complete  an  account  as 
he  could,  "so   that   we  could   see  how  we 
stood."    In   compliance  with  the  request, 
the  bank,  by  its  cashier,  prepared    and  de- 
livei-ed   to   the   agent  of  the  sureties  a  pa- 
per indorsed,  "A  partial   statement  in  de- 
tail of  the  defalcations  of   A.  B.,  late  cash- 
ier of  the  Manufacturers'  National  Bank  of 
Troy,"  which   contained    an   itemized   ac- 
count, with  dates  and  amounts  constitut- 
ing  the  claim.     The  account  comprised  a 
statement   of  alleged   false  charges  made 
by  the  cashier  in  the  accounts  of  deposit- 
ors, items   for  drafts   and  securities  of  the 
bank   abstracted,  and,  in   addition,  items 
amounting  in  the  aggregate  to  .$1G,G21.SJ5,  i 
entered  in    the    account   as   "cash   items 
drawn  from   the  bank   by  collusion  with 
the  teller,  without  the  knowledge   or  au- 
thority  of   the  officers  of  the  bank.  "    The 
alleged   libel    for    which    this    action     is  \ 
brought  is  founded   on  the  words  "by  col- 
lusion   with    the   teller,  "  contained  in  this 
statement,  and  also  on  a  repetition  of  the 
same   words  in   a  similar   account  subse-  j 
quently  furnished   as   a  bill  of   particulars  I 
in  the  action,  on  the  demand  of  the  attor- 
neys for  the  sureties.     The  plaintiff  in  the 
present  action  was  the  teller  of  the  bank 
during  the  period  of  the  alleged  defaka- 
tions   by   the  cashier,  and  no   question  is  ] 
made   but  that  the   words  "by  collusion 
with   the  teller, "  contained   in   the   state- 
ment delivered  to  the  agent  of  the  sureties,  i 
and  in   the  bill  of   particulars,  referred    to  I 
him.     It  cannot  admit   of  question  that ! 
the    publication    was    libelous,   and    bus-  j 
tained   the  action,  unless  the  publication  ! 
was.  as  claimed,   privileged.     It  charged  | 
the  plaintiff  with  complicity  in  the  crime  i 
of  embezzlement  committed   by  the  cash- : 
ier.    The  words  are  susceptible  of  no  other  '■ 
interpretation.    The    general    doctrine   of 
privilege  as   applied   to   actions  for  libel 
and  slander  is  founded    upon  the  reasona- ; 
ble  view  that  in   the  intercourse  between  ; 
members  of  society,  and  in  proceedings  in  . 
legislative  bodies,  and  in  courts  of  justice, ; 
occasions  arise  when  it   becomes   necessa-  i 
ry  or  proper  that  the  character  and   acts  I 
of  individuals  should   be  considered  and 
made  the  subject  of  statement  or  com- ; 
ment,  and  that  in   the  interests  of  society  | 
a  party  making   disparaging  statements  j 
in  respect  to   another  on  such  a  lawful  oc- 1 
casion  should   not  be  subjected  to  civil  re-  i 
sponsibility  in  an  action  of  this  character,  j 
although    such    statements   were  untrue,  j 
The  law   of   privilege  has  been  stated  by 
judges   in   different  forms   of  words,   but 
the  comprehensive    definition    of    Black- 
burn, J.,  in   Davies   v.   Snead,  L.  E.   5  Q. 
B.  Gl],  as  applied    to  communications  be-' 
tween   individuals,  is  especially  worthy  of 
notice.     "Where,  "says  that  learned  judge,  | 
"a  person   is   so  situated   that  it  becomes 
right  in  the  interests   of  society  that   he 
should   tell   a  third   person  certain  facts, 
then  if  he,  bona  Sde  and  without  malice, 
does   tell   them,  it  is  a  privileged  commu- 
nication." 

There  are  many  examples  in  the  books 
of  communications  held  to  be  privileged, 
where  the  same  words,  if  used  other  than 


on  a  lawful  occasion,  would  be  libelous, 
but  which,  b3'  reason  of  the  occasion 
v\-hen  thej'  were  published  or  spoken, 
will  not  sustain  an  action,  although 
proved  to  be  untrue,  unless  proved  to 
have  been  spoken  maliciously.  The  cases 
of  charges  made  in  giving  the  character 
of  a  servant,  or  in  answering  an  author- 
ized inquiry  concerning  the  solvency  <if  a 
tradesman,  or  where  the  comnuinicaticjn 
was  confidential  between  parties  having 
a  common  interest  in  the  subject  to  whicfi 
it  relates,  are  illustrations.  Bronson.  C. 
J.,  Washburn  v.  Cooke.  '6  Dcnio,  112.  In 
these  and  like  cases  theprivilege  is  not  ab- 
solute, but  conditional;  that  is  to  say,  the 
occasion  being  lawful,  the  communica- 
tion is  prima  facie  privileged,  and  rebuts 
the  inference  of  malice  which  would  oth- 
erwise arise,  and  imposes  on  the  plaintiff 
who  prosecutes  an  action  of  slander  or 
libel  the  burden  of  proving  that  the  de- 
fendant was  moved  by  actual  malicious 
intent  in  making  the  communication,  and, 
failing  in  that,  he  fails  in  the  action.  But, 
as  has  been  said,  if  the  occasion  is  not  a 
privileged  one,  the  same  words  may  give 
a  right  of  action,  as  where  an  employer, 
being  under  no  duty,  legal,  moral,  or  so- 
cial, to  give  information,  makes  defama- 
tory statements  affecting  the  servant's 
character,  or  where  a  person,  under  like 
circumstances,  imputes  insolvency  to  a 
trader.  In  such  cases  the  law  presumes 
both  malice  and  the  falsity  of  the  words, 
an<l  the  defendant  is  liable  for  damages 
unless  he  can  prove  that  the  words  were 
true. 

There  is  another  class  of  privileged 
communications  where  the  privilege  is  ab- 
solute. They  are  defined  in  Hastings  v. 
Lusk,  22  Wend.  410.  In  this  class  are  in- 
cluded slanderous  statements  made  by 
parties,  counselor  witnesses  in  the  course 
of  judicial  proceedings,  and  also  libelous 
charges  in  pleadings,  affidavits,  or  other 
papers  used  in  the  course  of  the  prosecu- 
tion or  defense  of  an  action.  In  questions 
falling  within  the  absolute  privilege  the 
question  of  malice  has  no  place.  However 
malicious  the  intent,  or  however  false  the 
charge  may  have  been,  the  law,  from  con- 
siderations of  public  policy,  and  to  secure 
the  unembarrassed  and  efficient  adminis- 
tration of  justice,  denies  to  the  defamed 
party  any  remedy  through  an  action  for 
libel  or  slander.  This  privilege,  however, 
is  not  a  license  which  protects  every  slan- 
derous publication  or  statement  made  in 
the  course  of  judicial  proceedings.  It  ex- 
tends only  to  such  matters  as  are  relevant 
or  material  to  the  litigation,  or,  at  least, 
it  does  not  protect  slanderous  publica- 
tions plainly  irrelevant  and  impertinent, 
voluntarily  made,  and  which  the  party 
making  them  could  not  reasonably  have 
supposed  to  be  relevant.  Ring  v.  Wheeler, 
7  Cow.  725:  Hastings  v.  Lusk,  22  Wend. 
410:  Gilbert  V.  People,  IDenio,  41 ;  G rover. 
J.,  Marsh  v.  Ellsworth,  50  N.  Y.  309:  Rice 
V.  Coolidge,  121  Mass.  393:  McLaughlin  v. 
Cowley,  127  Mass.  316.  Where  the  claim 
of  privilege  is  interposed  as  a  defense  to 
an  action  for  libel  or  slander,  it  is  not  the 
test  of  privilege  that  the  words  were  ut- 
tered or  published  on  a  privileged  occa- 
sion.    Where    there    are    several    distinct 


SLANDER  AND  LIBEL. 


147 


charges,  Romfi  privileged  and  some  not 
privilejred,  those  not  privileged  are  not 
justified  by  the  charges  that  are  |)rivileged. 
Clarke  v.  Roe,  4  Ir.  C.  L.  1  ;  Tuson  v.  Ev- 
ans, 12  Adol.  &  El.  733;  Warren  v.  Warren. 
1  Cromp.,  M.  &  R.  2.")0.  The  policy  upon 
which  the  doctrine  of  privilege  rests  does 
not  call  for  an  extension  of  the  privilege 
to  such  cases.  The  public  interests  are 
sufficiently  protected  when  the  privilege 
is  limited  to  communications  which  fairly 
ought  to  have  been  made,  or,  in  case  of 
judicial  proceedings,  to  matters  not  wholly 
outside  of  the  cause.  But  no  strained  or 
close  construction  will  be  indulged  to  ex- 
empt a  case  from  the  protection  of  privi- 
lege. Both  occasions  on  which  the  pub- 
lication in  this  case  was  made  were  privi- 
leged ;  that  is  to  say,  it  was  the  right  of 
the  sureties  to  receive,  and  it  was  the  rea- 
sonable duty  of  the  defendants  to  give,  all 
proper  information  bearing  upon  the  claim 
made  by  the  bank  against  the  sureties. 
The  occasion,  therefore,  justified  the  bank 
in  disclosing  the  fafts  relating  to  the  al- 
leged defalcation  of  the  cashier,  and  even 
if  the  bank  was  misinformed,  and  there 
had  been  no  defalcation  in  fact, such  infor- 
mation was  privileged,  and  the  cashier 
could  have  maintained  no  action,  unless 
perhaps  in  respect  to  the  first  publication 
on  proof  of  actual  malice.  Buttheincorpo- 
ration  into  the  publication  of  the  state- 
ment that  the  teller  acted  in  collusion  with 
the  cashier  was,  so  far  as  appears,  wholly 
irrelevant,  and  unnecessary.  The  teller 
was  not  a  party  to  the  bond  or  to  the 
suit.  There  was  an  issue  which  called  for 
an  investigation  of  the  teller's  conduct. 
The  information  that  the  teller  had  been 
in  complicitj-  with  the  cashier  was  not  in 
response  to  any  inquiry  made  by  the  de- 
fendant.    The  information  did  not  on   its 


face  explain,  or  tend  to  explain,  or  estab- 
lish any  fact  relevant  to  the  defendant's 
case  against  the  sureties,  nor  can  it  be  seen 
liow  knowledge  of  the  fact  communicated 
would  lie  of  advantage  to  the  sureties.  If, 
upon  any  ground,  the  information  was 
relevant  or  material,  as  no  such  ground 
appears  on  the  face  of  the  publication,  we 
are  not  at  liberty  to  assume  its  existence. 
The  burden  of  showing  its  relevancy,  un- 
der the  circumstances,  was  upon  the  de- 
fendants. It  is  not  impossible  that  a  nar- 
ration on  the  trial  of  the  facts  as  to  the 
defalcation  of  the  cashier  might  inci- 
dentally involve  a  disclosure  of  the  acts 
of  the  teller,  but  this  did  not,  we  think, 
justify  the  defendants  in  the  puV)lication, 
in  advance  of  the  defamatory  matter  as 
to  the  teller,  not,  so  far  as  appears,  hav- 
ing any  relevancy  to  the  liability  of  the 
sureties  on  their  bond.  Primn  facie  the 
publication  was  not  privileged.  The  ordi- 
nary consequence  follows  that  malice  is 
presumed  from  the  defamatory  nature  of 
the  publication,  and  the  defendants  must 
rely  for  their  defense  upon  a  justification 
(which  was  not  attempted)  or  upon  proof 
in  mitigation  of  damages.  The  cases  of 
Klinck  V.  Colby.  46  N.  Y.  427.  and  Marsh 
V.  Ellsworth,  50  X.  Y.  309,  are  not  incon- 
sistent with  the  conclusion  we  have 
reached.  Both  cases  recognize  the  rule 
that  the  question  of  privilege  depends 
upon  there  being  a  lawful  occasion  for 
speaking  and  the  use  of  words  pertinent 
to  that  occasion.  The  conclusion  reached 
requires  a  reversal  of  the  judgments  at 
the  circuit  and  general  term,  and  a  direc- 
tion for  a  new  trial.    J  udgments  reversed. 

RuGER,  C.  J.,  and  Finch,  Peckham,  and 
Gray,  JJ., concurred.  Earl  and  O'Bkik.v, 
JJ.,  dissented. 


(See,  also.  Rice  v.  Coolidge,  121  Mass.  393;  Hollis  v.  Meux,  69  Cal.  625,  11  Pac.  Rep.  248;  Barnes 
V.  McCrate,  32  Me.  442;  Liles  v.  Gaster,  42  Ohio  St.  631;  Dawkius  v.  Lord  Rokeby,  L.  R.  7  H.  L.  744; 
Munster  v.  Lamb,  11  Q.  B.  Div.  588.) 


VII.  CONSTRUCTION  OF  WORDS— COLLOQUIUM— INNUENDO. 


(103  Mass.  37.) 

Brettun  v.  Anthony. 

{Supreme  Jiidicial  Court  of  Massachusetts. 
Oct.  Term,  1S69.) 

1.  Slander — Pleading. 

A  count  of  a  declaration  in  an  action  for  slan- 
der averred,  in  substance,  the  destruction  by  fire 
of  plaintiff's  building  with  the  goods  therein, 
and  that  the  building  and  goods  were  at  the  time 
insured  against  damage  by  fire,  and  charged  that 
"after  said  destruction  by  fire,  the  defendant, 
speaking  with  reference  thereto,  well  knowing 
that"  the  building  and  goods  were  so  insured,  ac- 
cused plaintiff  of  the  crime  of  willfully  burning 
them  with  intent  to  injure  the  insurers,  bywords 
spoken  of  plaintiff,  substantially,  that  plaintiff 
"burned  the  store.  "  Held,  on  demurrer,  that  this 
■\\Tis  defective,  as  the  words  thus  spoken  did  not 
alone  impute  a  crime,  and  the cnUoquium  did  not 
extend  to  the  whole  of  the  prefatory  inducement; 
the  averments  of  the  necessary  facts,  and  of  de- 
fendant's knowledge  thereof,  were  not  alone  suf- 
ficient. 

2.  Same. 

A  subsequent  count  alleged  that  plaintiff  pe- 
titioned to  be  and  was  adjudged  a  bankrupt,  and 
that  defendant  accused  plaintiff  of  the  crime  of 


disposing  of  his  goods  with  intent  to  defraud  his 
creditors,  and  attempting  to  account  for  them  by 
fictitious  losses,  and  acts  which  were  offenses 
under  and  in  violation  of  the  banlirupt  act,  by 
words  spoken  of  plaintiff  during  the  pendency  of 
the  bankrupt  proceedings,  substantially  the  same 
words  as  alleged  in  the  preceding  count,  "the  de- 
fendant thereby  referring  to  the  destruction  by 
fire  referred  to  in  the  preceding  count,  by  which 
fire  certain  memoranda,  books,"  etc.,  relating  to 
plaintiff's  business  were  destroyed.  Held,  that 
this  count  was  open  to  the  same  objection. 

Case  reserved  on  demurrer. 

Action  of  tort  by  Seth  H.  Brettun 
against  James  H.  Anthony  for  slander. 
The  third  count  of  the  declaration  alleged 
that  plaintiff  was  the  owner  of  a  certain 
building,  which  he  occupied  with  his 
goods  and  other  chattels  for  a  store;  that 
the  building  and  the  goods  and  other 
chattels  therein  were  insured  against  loss 
or  damage  by  fire,  and  were  destroyed  by 
fire  during  the  time  that  they  were  so  in- 
sured ;  that,  "after  said  destruction  by 
fire,  the  defendant,  speaking  with  refer- 
ence   thereto,    well    knowing   that    said 


148 


LAW  OF  TOUTS. 


building,  and  also  said  goods,  wares,  mer- 
chandise, and  other  chattels  therein  were 
insured  against  loss  or  damage  by  fire  as 
aforesaid,  publicly,  falsely,  and  mali- 
ciously accused  the  plaintiff  of  the  crime 
of  willfully  burning  said  building,  and  the 
goods,  wares,  merchandise,  and  other 
chattels  therein,  at  the  time  they  were  so 
insured  against  loss  or  damage  by  fire, 
with  the  intent  to  injure  the  insurers 
thereof,  by  words  spoken  of  the  plaintiff, 
substantially  as  follows:  'Some  of  the 
folks  up  your  way  think  that  Henry 
[meaning  "the  plaintiff]  burned  \he  store.' 
'I  [meaning  the  defendant]  have  no  doubt 
but  what  he  [meaning  the  plaintiff] 
burned  it.'"  The  fourth  count  allet^ed 
that  plaintiff  petitioned  for  the  benefit  of 
the  bankrupt  act  and  was  duly  adjudged 
a  bankrupt,  and  that  the  proceedings 
thereon  were  still  pending;  that  defendant 
was  a  creditor  of  plaintiff,  and  had  duly 
proved  his  claim  in  bankruptcy;  and  that 
defendant,  "well  knowing  that  said  pro- 
ceedings in  bankruptcy  had  been  com- 
menced as  aforesaid,  publicly,  falsely,  and 
maliciously  accused  the  plaintiff  of  a  crime 
and  misdemeanor,  in  this:  that  the  plain- 
tiff, with  intent  to  defraud  his  creditors, 
within  three  months  before  the  commence- 
ment of  the  proceedings  in  bankruptcy 
on  said  petition  of  the  plaintiff,  did  dis- 
pose of,  otherwise  than  by  feooa  tide  trans- 
actions in  the  ordinary  way  of  trade,  his 
goods  or  chattels  obtained  on  credit  and 
remaining  unpaid  for;  and  in  this:  that 
the  plaintiff  did  attempt  to  account  for 
the  property,  or  some  part  thereof,  by  fic- 
titious losses  or  expenses;  and  in  this: 
that  the  plaintiff  did  acts  which  are  of- 
fenses under  and  are  in  violation  of"  the 
bankrupt  act,  "by  words  spoken  of  the 
plaintiff,  during  the  time  of  the  pendency 
of  said  proceedings  in  bankruptcy,  sub- 
stantially as  follows:  '  He  [meaning  the 
plaintiff]  is  the  biggest  rascal  off  the  gal- 
lows. Some  of  the  folks  up  your  way 
think  that  Henry  [meaning  the  plaintiff] 
burned  the  store.  I  have  no  doubt  but 
what  he  [meaning  theplaintiff]  burned  the 
store,' — the  defendant  thereby  referring  to 
the  destruction  bj-  fire  referred  to  in  the 
preceding  count,  by  which  fire  certain 
memoranda,  books,  accounts,  and  other 
papers  relating  to  tbe  plaintiff's  trade  or 
business  were  destroyed  ;  and  that  the  de- 
fendant did  publicly,  falsely,  and  mali- 
ciously accuse  the  plaintiff,  in  words  spoken 
of  the  plaintiff  as  above  set  forth,  of  acts, 
matters,  and  things"  whereby  plaintiff's 
discharge  in  bankruptcy  would  be  with- 
lield,  or,  if  granted,  would  be  invalidated. 
Defendant  demurred  to  these  two  counts, 
on  the  ground  that  they  set  forth  no 
cause  of  action.  The  case  was  reserved 
for  the  consideration  of  the  full  court. 

E.  H.  Bennett,  C^V- ^-  J^ox.  with  him,) 
in  support  of  the  demurrer.  J.Brown  and 
C.  A.  heed,  opposed. 

Colt,  J.  The  sufficiency  of  two  counts 
in  the  plaintiffs  declaration  is  submitted 
upon  this  demurrer.  The  words  actually 
used,  as  set  forth  in  these  counts,  do  not 
alone  impute  a  crime  which  would  render 
tne  plaintiff  liable  to  punishment.  They 
are    consistent    with    a    burning    caused 


without  criminal  intent,  by  carelessness 
or  accident;  and  additional  facts  are 
therefore  alleged  in  each  count,  from 
which  it  is  claimed  the  criminal  quality  of 
the  act  appears  with  certainty.  This  is 
to  be  settled  by  the  familiar  rules  which 
govern  the  pleadings  in  actions  of  slan- 
der. Words  in  themselves  harmless,  or  of 
doubtful  import,  become  slanderous  when 
used  with  reference  to  known  existing 
facts  and  circumstances  in  such  manner  as 
to  convey  to  the  hearer  a  charge  of  crime. 
This  limited  protection  to  reputation  the 
law  attempts  to  give  against  indirect 
verbal  imputation.  It  must,  however,  be 
made  apparent,  by  suitable  averments  in 
the  declaration,  that  the  language  em- 
ployed was  used  by  the  defendant  slan- 
derously, to  the  extent  stated;  and  the 
words,  when  taken  in  their  plain  and  nat- 
ural import,  must  be  capable  of  the  mean- 
ing attributed  to  them.  The  facts  which 
determine  tiie  alleged  meaning  are  usually 
stated  in  a  prefatory  manner,  followed  by 
a  positive  averment,  or  colloquium,  that 
the  discourse  was  of  and  concerning  these 
circumstances.  Whatever  the  particular 
order  of  their  arrana:ement,  these  aver- 
ments become  material  and  traversable, 
and  it  must  appear  from  them  that  the 
words  impute  the  alleged  offense.  It  is  a 
further  elementary  principle  that  the  col- 
loquium must  extend  to  the  whole  of  the 
prefatory  inducement  necessary  to  render 
the  words  actionable. 

An  omission  in  the  respect  indicated  will 
not  be  aided  by  mere  innuendoes,  whose 
office  cannot  add  to  or  extend  the  sense 
or  effect  of  the  words  set  forth,  or  refer  to 
anything  not  properly  alleged  in  the  dec- 
laration. Snell  V.  Snow,  13  Mete.  (Mass.) 
278.  General  allegations  that  the  defend- 
ant charged  the  [)laintiff  falsely  and  mali- 
ciously with  the  commission  of  a  particu- 
lar crime,  accompanied  by  innuendoes, 
however  broad  and  sweeping,  will  not 
aid  a  declaration  otherwise  imperfect. 
Thus  the  act  of  burning  one's  own  proper- 
ty becomes  a  crime  only  under  special  cir- 
cumstances, as  when  done  for  the  purpose 
of  defrauding  the  insurers  or  in  violation 
of  the  provisions  of  the  bankrupt  act. 
Conversation  about  such  burnina:,  other- 
wise innocent  or  of  doubtful  import,  may 
be  made  actionable,  if  reference  was  had 
in  it  to  those  special  circumstances,  in 
such  manner  as  necessary  to  impute  the 
crime.  And  the  declaration  is  defective  if 
it  does  not  set  this  forth  by  suitable  aver- 
ments. 

It  is  no  answer  that  facts  and  circum- 
stances enough  are  stated,  unless  it  is  al- 
so averred  that  the  speech  of  the  defendant 
was  w^ith  reference  to  such  facts,  or  so 
many  of  them  as  are  essential  elements  in 
the  crime.  Nor  is  this  want  supplied  by 
alleging  that  the  defendant,  at  the  time  of 
speaking  the  words,  had  knowledge  of 
the  particular  circumstances  which  make 
the  act  of  which  he  speaks  criminal.  He 
is  to  be  charged  only  for  a  wrong  actual- 
ly committed,  irrespectively  of  his  secret 
knowledge  or  intent.  He  is  responsible 
onlj'^  for  the  meaning  which  the  words 
used  by  him,  rea^sonably  interpreted,  con- 
vey to  the  understanding  of  the  persons 
in    whose    presence    they     were    uttered. 


SLANDER  AND  LIBEL. 


149 


Fowle  V.  Robbins,  12  Mass.  49^;  Bloss  v. 
Tobey,  2  Pick.  320;  Carter  v.  Andrews.  16 
Pick.  1,  5;  Sweetapple  v.  Je.s.se,  5  Barn. 
&  Adol.  27. 

Dnder  the  practice  act.  these  rules  of 
pleading  still  prevail.  No  avei'iiient  need 
now  be  made  which  the  law  does  not  re- 
quire to  be  proved;  l)ut  all  the  substan- 
tial facts,  necessary  to  constitute  the 
cause  of  action,  must  be  stated  with  sub- 
stantial certainty.  Tebbetts  v.  Godina,  9 
<irav,  254;  Chonery  v.  Goodrich,  9S  Ma.ss. 
224. 

The  plaintiff's  declaration,  on  the  counts 
under  consideration,  does  not,  in  our 
opinion,  meet  the  requirements  here  stat- 
ed. The  tiist  count  avers,  in  substance, 
the  destruction  of  the  plaintiffs  building, 
with  tlie  goods  therein,  and  the  fact  that 
the  building  and  goods  were  at  the  time 
of  the  loss  insured  against  damage  bj'  fire. 


It  then  charges  that  the  defendant,  speak- 
ing with  reference  to  said  destruction  by 
fire,  and  knowing  of  the  insurance,  ac- 
cused the  plaintiff  of  the  crime  of  burning, 
witii  intent  to  injure  the  insurer  by  the 
words  recited.  The  difficulty  i^  that  the 
words  thus  spoken  are,  by  reasrjnable 
construction,  connected  with  onl^-  one  of 
the  prefatory  allegations,  nanielj'.  the 
burningof  thebuilding.  and  [not]  with  the 
circumstance  of  the  insurance.  They  do 
not,  therefore,  impute  a  crime.  In  other 
words,  the  colloijuiinn  is  not  co-extensive 
with  the  whole  inducement  which  the 
pleader  thought  necessary  to  set  out. 
Tlie  other  count  is  open  to  the  same  ob- 
jection, and  fails  to  connect  the  words 
with  any  conversation  relating  to  the 
plaintiff's  bankruptcy,  or  any  acts  which 
are  made  offenses  under  the  bankrupt  act. 
Demurrer  sustained. 


(See  also,  Van  Vechten  v.  Hopkins,  5  Johns.  211;  Patterson  v.  "Wilkinson,  .55  Me.  42;  Sturtevant 
V.  Root,  27  N.  H.  69;  Slitzell  v.  Reynolds,  59  Pa.  St.  48S;  Bank  v.  Henty,  L.  R.  7  App.  Cas.  741.) 


VIII.  SLANDER  OF  TITLE. 


(5N.  Y.  14.) 

Kkndall  v.  Stoxe. 

(Court  of  Appeals  of  New  York.    July,  1S51. ) 

1.  Sl.\.nder  of  Title — Pecuxi.\ry  Ixjukt. 

To  maintain  an  action  for  slander  of  title,  the 
words  must  not  only  be  false,  but  must  be  uttered 
malicioush',  and  be  followed  as  a  natural  and 
legal  consequence  by  pecuniary  damage  to  plain- 
tiff, which  must  be  specially  alleged  and  proved. 

2.  Same. 

By  statements  made  by  defendant  as  to  plain- 
tiff's title  to  a  lot  of  land,  a  third  person,  who 
had  entered  into  a  written  contract  with  plaintiff 
for  the  purchase  of  it,  was  induced  to  desire  to 
withdraw  from  his  agreement,  to  which  plaintiff 
assented,  and  the  contract  was  rescinded.  Held, 
that  plaintiff's  loss  of  the  sale  was  not  the  legal 
consequence  of  the  words  spoken  by  defendant, 
and  plaintiff  could  not  recover  damages  from 
him  therefor. 

Appeal  from  superior  court  of  the  city  of 
New  York,  general  term. 

Actirm  for  slander  of  title.  Defendant 
appealed  from  a  judgment  for  plaintiff, 
and  from  an  order  denj'ing  a  motion  for  a 
new  trial  made  on  a  bill  of  exceptions. 

X.  Hill,  Jr.,  for  appellant.  O.  Bushnell, 
for  respondent. 

Gardiner,  J.  The  cause  of  action  in  this 
case  is  denominated  "slander  of  title"  by 
a  figure  of  speech,  in  whicli  the  title  to 
land  is  personifieil,  and  made  subject  to 
many  of  the  rules  applicable  to  personal 
slander,  when  the  Avords  in  themselves  are 
not  actionable.  To  maintain  the  action, 
the  words  must  not  onlj'  be  false, but  they 
must  be  uttered  maliciously,  (Smitli  v. 
Spooner,  3  Taunt.  254;  Pater  v.  Baker,  3 
Man.  G.  &  S.  8GS,)  and  be  followed,  as  a 
natural  and  legal  consequence,  by  a  pe- 
cuniary damage  to  the  plaintiff,  which 
must  be  specially  alleged  in  the  declara- 
tion, and  substantially  proved  on  the 
trial,  (Beach  v.  Ranney,  2  Hill,  314;  Grain 
V.  Petrie,  6  Hill,  .524.)  The  declaration  in 
this  case  alleges,  in  the  only  count  to 
which  the  evidence  applies,  that  by  means 


of  the  grievances  divers  good  citizens,  and 
especially  one  Asa  H.  Wheeler,  were  de- 
terred from  purchasing  the  lands  in  ques- 
tion, and  the  plaintiff  was  prevented  from 
disposing  of  the  same,  and  thereby  de- 
prived of  the  advantages  to  be  derived 
from  the  sale  thereof,  etc.  The  loss  of  a 
sale  to  Wheeler  is  therefore  the  only  spe- 
cial damage  incurred  by  the  plaintiff  al- 
leged in  the  declaration  and  established 
b\-  the  evidence.  The  superior  court  place 
the  recovery  upon  this  ground,  and  it  is 
obviously  the  only  one  on  which  it  can  be 
sustained.  Before  tlie  words  were  spoken 
the  plaintiff  and  Wheeler  had  entered  into 
an  agreement  in  wi-iting  for  the  sale  of  the 
lot  in  question,  which  was  executed  by  the 
vendor,  and  accepted  by  the  vendee,  who 
upon  its  deliver^'  paid  ^250  towards  the 
purchase  money.  The  agreement  was  ob- 
ligatory upon  both  parties.  Either  could 
have  enforced  a  specific  performance  in 
equity-,  and  thereby  attained  the  precise 
result  contemplated  by  the  contract.  Un- 
der these  circumstances,  the  representa- 
tions charged  were  made  by  the  defend- 
ant. The  effect  of  them  was  not  to  pre- 
vent a  sale  of  the  land,  for  Ihat  had  been 
secured  by  the  existing  contract.  Wheeler 
was  induced  by  the  misrepresentation  to 
desire  a  relinquishment  of  the  agreement. 
This  was  assented  to  by  the  plaintiff,  the 
agreement  was  rescinded,  and  the  note  of 
the  vendor  received  for  the  amount  of  the 
monej'  advanced  bj'  the  purchaser.  This 
suit  was  then  instituted,  and  special  dam- 
ages claimed  of  the  defendant,  substan- 
tially for  the  non-fulfillment  of  a  contract 
which  had  been  surrendered  by  the  con- 
sent and  agreement  of  the  plaintiff.  This 
is  a  brief  statement  of  the  proceeding. 

The  court  charged  "that  it  was  pretty 
manifest,  from  the  testimony  of  Wheeler, 
that  the  plaintiff  had  sustained  damages; 
that  the  former  would  have  taken  the  ti- 
tle, if  it  had  not  been  for  the  words  spok- 
en by  the  defendant."  To  this  there  was 
an  exception,  and   the   question  is  wheth- 


150 


LAW  OF  TORTS. 


er  the  special  damage  alleged  by  the 
plaintiff,  wliich  is  the  gist  of  the  action, 
was  established  bj'  this  evidence.  It  has 
been  doubted  whether,  in  any  case  where 
there  is  a  subsisting  contract,  and  its  per- 
formance is  prevented  by  the  representa- 
tions of  a  third  person,  an  action  would 
lie  in  behalf  of  the  person  with  whom  the 
contract  was  made.  The  cases  are  col- 
lected in  Moody  v.  Baker, 5  Cow.  351.  The 
judges  in  that  case  were  divided  in  opin- 
ion, but  Justice  WooDWORTH,  who  deliv- 
ered the  opinion  of  the  court,  conceded 
that  the  action  would  not  lie  where  tlie 
contract  was  for  the  payment  of  money  ; 
and  the  principle  of  the  concession  extends 
to  every  case  where  a  breach  of  the  con- 
tract is  susceptible  of  a  fixed  and  definite 
compensation  in  monej',  or  where  it  may, 
according  to  the  usual  practice  of  the 
courts,  be  specifically  enforced  against  the 
delinquent  party. 

A  misrepresentation  which  should  in- 
duce a  party  to  violate  a  contract  for  the 
sale  and  delivery  of  goods  or  stocli  would 
no  more  be  the  subject  of  an  action  than 
one  which  should  cause  the  refusal  to  pay 
a  promissory  note.  Morris  v.  Langdale, 
2BOS.&  P.  2S4;  Vicars  v.  Wilcocks,S  East, 
1.  There  is  no  difference  in  principle  be- 
tween a  contract  for  the  delivery  of  mer- 
chandise and  for  the  sale  of  land,  except 
that  in  the  latter  case  the  remedy  of  a  spe- 
cific performance  is  more  complete  than  a 
pecuniary  compensation.  My  own  opin- 
ion would  be  that  no  action  could  be  sus- 
tained in  such  a  case,  upon  the  ground 
taken  in  Vicars  v.  Wilcocks,  supra,  that  the 
damages  must  be  the  legal,  and  not  the 
illegal,  consequence  of  the  words  spoken. 
This  principle  was  recognized  in  Butler  v. 
Kent,  19  .Tohns.  228,  and  in  Beach  v.  Ran- 
ney,  2  Hill,  309,  that,  in  an  action  for 
words  not  actionable  perse,  the  damage 
must  be  "the  natural  and   immediate  con- 


sequence of  the  speaking  of  the  words." 
See,  also,  Crain  v,  Petrie,  6  Hill,  524,  and 
Moody  V.  Baker,  supra,  354.  In  this  case 
the  words  charged  were  not  the  immediate 
cause  of  the  non-fulfillment  of  the  con- 
tract, in  any  conceivable  view  that  can  be 
taken.  But,  if  I  am  wrong  in  this,  there 
is  no  case  that  holds  that,  where  the  spe- 
cial damage  consists  in  the  violation  of  a 
contract,  the  plaintiff  may  discharge  the 
obligation,  and  then  recover  damages  in 
an  action  of  tort  for  its  non-performance. 
The  right  claimed  to  be  affected  by  the 
slander  originated  in  and  subsisted  by 
virtue  of  the  contract.  When  that  was 
discharged,  it  fell  with  it.  The  vendor 
and  vendee  elected  to  consider  the  agree- 
ment as  null  from  the  beginning.  When 
the  suit  was  instituted,  therefore,  there 
could  be  no  injury,  for  there  was  no  right 
to  be  affected.  Yet,  under  these  circum- 
stances, the  plaintiff  has  been  permitted 
to  recover  a  thousand  dollars  by  way  of 
damages,  because  Wheeler  wished  to  be 
disf'harged  from  a  purchase  of  a  lot,  tlie 
stipulated  value  of  which  was  $900,  and 
was  discharged  by  the  vendee  according- 
ly. In  Bird  v.  Randall,  3  Burrows,  1345, 
the  action  was  for  enticing  a  servant  from 
the  employment  of  the  plaintiff.  The  serv- 
ant was  bound  to  the  master  for  five 
years,  under  a  penalty  of  £100.  The  plain- 
tiff sued  the  servant,  and  recovered  judg- 
ment, which  was  paid  after  tl)e  suit 
against  the  defendant  was  at  issue  and 
noticed  for  trial.  It  was  held  that  the  de- 
fendant was  discharged.  The  recovery 
against  the  servant  by  him,  and  payment, 
put  an  end  to  the  contract,  as  Lord  Mans- 
field remarks,  and  in  his  reasoning  he 
puts  a  satisfaction  upon  the  same  ground 
as  a  release  or  discharge  of  the  contract. 
The  judgment  must  be  reversed. 

Judgment   reversed,   and  new  trial   or- 
dered. 


(See,  also,  Like  v.  McKinsti-y,  3  Abb.  Dec.  63;  Malachv  v.  Soper,  3  Bing.  N.  C.  371;  Andrew  v. 
Deshler,  45  N.  J.  Law,  167;  Wreu  v.  Weild,  L.  R.  4  Q.  B.  730.) 


TRESPASS  TO  LAND. 


I.  WHAT  CONSTITUTES  A  TRESPASS. 


(74  Me.  163.) 
Hatch  v.  Donnell. 

(Supreme  Judicial  Court  of  Maine.     Nov.  17, 

1882.) 

Trespass  to  Land— What  Constitutes. 

An  entry  upon  the  land  of  another,  without  any 
permission,  express  or  implied,  constitutes  a 
trespass,  for  which  damages  are  recoverable, 
though  merely  nominal. 

On  report. 

Action  of  trespass  quare  clausuw  fregit. 
The  parties  were  adjoining  owners,  the 
dividing  line  being  in  dispute.  The  decla- 
ration alleged  two  acts  of  trespass, — one 
in  1880,  w'hen   defendant  drove  his  horse 


and  plow  over  plaintiff's  lands,  and  one  in 
1881,  when  defendant  cultivated  the  land 
in  dispute. 

Will.  T.  Hall,  for  plaintiff.  J.  W.  Spauld- 
iag-  and  F.  J.  Buker,  for  defendant. 

Appleton,  C.  J,  This  is  an  action  of 
trespass  for  breaking  and  entering  the 
plaintiff's  close.  The  lots  of  the  plaintiff 
and  defendant  are  adjacent.  The  defend- 
ant, when  plowing  his  land,  brought  his 
horse  and  plow  on  the  plaintiff's  land, 
treading  down  her  grass  and  knocking  off 
bark  from  her  trees.  This  is  the  ti-esi)ass 
complained  of.  The  defendant  had  no 
right  of  entry   upon  the  plaintiff's  land. 


TKESPASS  TO  LAND. 


151 


His  entry  was  a  trespass.  Permission 
was  not  asked,  nor  license  given.  The 
plaintiff  in  no  way  consented  and  the  de- 
fendant never  asked  consent.  The  parties 
rely  on  their  strict  lep:al  rights,  neither 
asking  of  nor  giving  any  favor  to  the 
other.  The  relation  of  the  parties— the 
sedulous  care  of  each  to  preserve  existing 
rights— negatives  the  idea  of  implied,  equal- 
ly as  of  express,  permission  or  license.  In 
Harmon  v.  Harmon.  61  Me.  222,  and  in 
Lakin  v.  Ames,  10  Cush.  198,  there  was  the 
fact  of  relationship  between  the  parties, 
from  which,  with  theother  circumstances, 
license  was  inferred.  Here  there  was  no 
such  fact.  No  friendly  relations  were  ex- 
isting between  the  parties.  Their  attitude 
was  mutually  adverse.  The  damages  are 
merely  nominal. 
Judgment  for  plaintiff  for  one  dollar. 

Barkow^s,  Danfokth,  Virgin,  Peters, 
and  Symonds,  JJ.,  concurred. 


(9  Barb.  652.) 

Newkirk  v.  Sabler. 

(Supreme  Court  of  New  York.    Dec.  2,  1850.) 

Trespass  to  Laxd — Entry  to  Take  Awat  Prop- 
erty— Repelling  by  Force. 
Plaintiff,  having  been  forbidden  to  cross  de- 
fendant's lands,  sent  his  servant  with  a  team 
across  tnem.  On  the  ser\'ant's  return  to  the  bars 
where  he  had  entered,  he  found  them  nailed  up; 
whereupon  he  left  the  team  on  defendant's  land, 
and  went  and  informed  plaintiff,  who  came  and 
commenced  tearing  down  the  fence,  in  order  to 
take  away  his  team,  and,  persisting  in  his  at- 
tempt, after  being  forbidden  by  defendant,  a  fight 
ensued,  and  plaintiff  was  injured.  Held,  that 
plaintiff  had  no  right  to  enter  upon  defendant's 
land  to  take  away  his  property  without  the  ex- 
press or  implied  consent  of  defendant,  and  that 
defendant  bad  the  right  to  protect  his  possession 
and  property  by  force,  and  was  not  liable  unless 
the  force  used  was  greater  than  necessary  for 
such  purpose. 

Appeal  from  circuit  court,  Ulstercounty. 

Action  for  assault  and  batterj'.  At  the 
trial  it  appeared  that,  after  defendant  had 
forbidden  plaintiff  crossing  his  farm  lands, 
plaintiff  sent  his  servant  with  a  team 
across  such  land.  The  servant  entered  by 
taking  down  bars,  which,  on  his  return, 
he  found  defendant  had  nailed  up.  After 
an  ineffectual  attempt  to  get  through,  he 
left  the  team  on  defendant's  lands,  and 
went  after  plaintiff,  who  came  and  com- 
menced tearing  down  the  fence  to  take 
away  iiis  team  ;  and,  refusing  to  desist  on 
defendant's  demand,  a  fight  ensued,  but 
plaintiff  succeeded  in  getting  down  the 
fence  and  taking  his  team  away.  For  the 
injuries  to  plaintiff  in  the  fight  he  brought 
this  action.  The  judge  charged  the  jui'y 
that  plaintiff  had  the  right  to  take  his 
team  away,  even  though  wrongfully  on 
the  premises,  and  if  he  did  no  more  dam- 
age than  necessary  for  rhat  purpose  de- 
fendant was  not  justified  in  using  force, 
and  that  the  real  question  was  as  to 
whether  plaintiff  was  at  the  time  engaged 
in  wanton  anrl  unnecessarj-  destruction  of 
the  defendant's  fences;  to  which  charge 
defendant  excei)teil.  The  jury  found  a 
verdict  for  plaintiff  f(jr  $oU.  From  the 
judgment  for  plaintiff  entered  on  the  ver- 
dict, defendant  appealed. 


T.   R.  Ufstbronk,  for  defendant.     L.  S. 
Cbatfipkl,  for  plaintiff. 

Parker,  J.  I  think  the  learned  justice 
erred  in  holding  that  the  plaintiff  had  a 
right  t(»  enter  upon  the  lands  of  the  defend- 
ant for  the  purpose  of  regaining  posses- 
sion of  his  property.  The  right  to  land  is 
exclusive;  and  every  entry  thereon,  with- 
out the  owner's  leave,  or  the  license  or  au- 
thority of  law,  is  a  trespass.  3  Bl.Comm. 
209;  Percival  v.  Hickey,  18  Johns.  28.5. 
There  is  a  varietj'  of  cases  where  an  au- 
thoritj' to  enter  is  given  by  law;  as,  to 
execute  legal  process ;  to  distrain  for  rent ; 
to  a  landlord  or  reversioner,  to  see  that  his 
tenant  does  not  commit  waste,  and  keeps 
the  premises  in  repair  according  to  his  cove- 
nant or  promise;  to  a  creditor,  to  demand 
money  payable  there;  or  to  a  person  en- 
tering an  inn,  for  the  purpose  of  getting 
refreshment  there.  3  Bl.  Comm.  212;  1 
Cow.  Treat.  411.  In  some  cases,  a  license 
will  be  implied;  as,  if  a  man  makes  a  lease, 
reserving  the  trees,  he  has  a  right  to  enter 
and  ohow  them  to  the  purchaser.  Lampet 
V.  Starkey,10Coke,4G.  Where  the  owner  of 
the  soil  sells  the  chattels  being-  on  his 
land  ;  as,  if  he  sell  a  tree,  a  crop,  a  horse, 
or  a  fanniijg-mill,  which  remain  within 
his  close,  he  at  the  same  time  passes  to  the 
vendee,  as  incident  to  such  sale,  a  right  to 
go  upon  the  premises,  and  take  awaj'  the 
subject  of  his  purchase,  without  being  ad- 
judged a  trespasser.  1  Cow.  Treat.  .367; 
Bac.  Abr.  "Trespass,"  F;  Winterbourne  v. 
Morgan,  11  East.  396;  2  Rolle,  Abr.  TAM,  m. 
n.  1.  And  if  a  man  in  virtue  of  his  license 
erects  a  building  on  another's  land,  this 
license  cannot  be  revoked  so  entirely  as  to 
make  the  person  who  erected  it  a  tres- 
passer for  entering  and  removing  it  after 
the  revocation.  In  some  cases  the  motive 
will  excuse  the  entry.  If  J.  S.  goes  into 
the  close  of  J.  N.  to  succor  the  beast  of  J. 
N.,  the  life  of  which  is  in  danger,  an  ac- 
tion of  trespass  will  not  lie;  because  as 
the  loss  of  J.  N.,  if  the  beast  had  died, 
would  have  been  irremediable,  the  doing 
of  this  is  lawful.  But  if  J.  S.  go  into  the 
close  of  J.  N.  to  prevent  the  beast  of  J.  N. 
from  being  stolen,  or  to  prevent  his  corn 
from  being  consumed  by  hogs,  or  spoiled, 
the  action  of  trespass  lies;  for  the  loss,  if 
either  of  those  things  had  happened,  would 
not  have  been  irremediable.  Bac.  Abr. 
"Trespass,"  F.  And  if  a  stranger  chase 
the  beast  of  A.,  which  is  damage-feasant 
therein,  out  of  the  close  of  B.,  trespass  will 
lie:  for  by  doing  this,  although  it  seems 
to  be  for  liis  benefit,  B.  is  deprived  of  his 
right  to  distrain  the  beast.  Brooke,  Abr. 
"Trespass,"  pi.  421 ;  Keilw.  46. 

In  seme  cases  the  entry  will  be  excused 
by  necessity;  as,  if  a  public  highway  is  im- 
passable, a  traveler  may  go  over  the  ad- 
joining land.     Absor  v.  French.  2Show.  28; 

Asser  v.  Finch,  2Lev.  234:  Young  v. , 

1  Ld.  Raym.  72.").  But  this  would  not  ex- 
tend to  a  private  way;  for  it  is  the  own- 
er's fault  if  he  does  not  keep  it  in  repair. 
Taylor  v.  Whitehead,  2  Doug.  747;  Pom- 
fret  v.  Ricroft,  1  Saund.  321.  So.  if  a  man 
who  is  assaulted,  and  in  danger  of  his  life, 
run  through  the  close  of  another,  tres- 
I)ass  will  not  lie.  because  it  is  necessary 
for  the  preservation   of  his   life.     Y.  B.  37 


152 


LAW  OF  TORTS. 


Hen.  VI.  37,  pi.  26.  If  my  tree  be  blown 
clown,  and  fall  on  thelancl  of  ray  neighbor, 
I  may  so  on  and  take  it  away.  Brooke, 
Abr. '"Trespass,"  pi.  213.  And  the  same 
rule  prevails  where  fruit  falls  on  the  land 
of  my  neighbor;  I  may  go  and  take  it 
away.  Id.  pi.  213.  And  the  same  rule  pre- 
vails where  fruit  falls  on  the  land  of  an- 
other. Millen  &  Fawdry's  Case,  Latch,  120. 
But,  if  the  owner  of  a  tree  cut  the  loppings 
so  that  they  fall  on  another's  laud,  he  can- 
not be  excused  for  entering  to  take  them 
away,  on  the  ground  of  necessity,  been  use 
he  might  have  prevented  it.  Bac.  Abr. 
"Trespass,"  F. 

Sometimes  the  right  of  action  depends 
on  the  question,  which  is  the  first  wrong- 
d<jer?  If  J.  S.  have  driven  thebeast  of  J.N. 
into  the  close  of  J.  S.,  or  if  it  have  been 
driven  therein  by  a  stranger,  with  thecon- 
sent  of  J.  S.,  and  J.  N.  go  thereinto  and 
take  it  away,  trespass  willnot  lie,  because 
.).  S.  was  himself  the  first  wrong-doer.  2 
Rolle,  Abr.  566.  pi.  9;  Chapman  v.  Thum- 
blethorp,  Cro.  Eliz.  329.  Tested  by  that 
rule,  the  plaintiff  in  this  suit  certainl.y  has 
no  right  of  action;  for  he  was  the  first 
wrong-doer.  But  it  is  well  settled  that 
where  there  is  neither  an  express  nor  an 
imi>lied  license,  nor  any  such  legal  excuse 
as  is  above  stated,  a  man  has  no  right  to 
enter  upon  the  land  of  another  for  the 
purpose  of  taking  away  a  chattel  being- 
there,  which  belongs  to  the  former.  The 
mere  fact  that  the  plaintiff  owns  the 
chattel  gives  him  no  authority  to  go  up- 
on the  land  of  another  to  get  it.  In  Heer- 
mance  v.  Vernoy,  6  Johns.  5,  where  A.  has 
entered  upou  the  land  of  B.  without  his 
permission,  to  take  a  chattel  belonging  to 
A.,  it  was  held  to  be  a  trespass.  So  in 
Blake  v.  Jerome,  14  Johns.  406,  a  mare  and 
colt  were  taken  out  of  the  plaintiff's  field, 
by  a  person  who  acted  under  the  orders 
and  directions  of  the  defendant,  after  they 
had  been  demanded  by  the  defendant  and 
refused  to  be  delivered  to  him,  and  after 
he  had  been  expressly  forbidden  to  take 
them ;  and  the  defendant  was  held  to  be 
guilty  of  a  trespass. 

In  this  case,  the  plaintiff's  horses  and 
wagon  were  on  the  lands  of  the  defendant, 
where  they  had  been  left  by  the  servant  of 
the  plaintiff.  They  were  not  there  by  the 
defendant's  permission.  On  the  contrary, 
the  plaintiff  had  been  guilty  of  a  trespass 
in  sending  his  team  across  the  lands  of 
the  defendant  after  he  had  been  forbidden 
to  do  so.  And  I  think  the  defendant  had 
the  right  to  detain  them  before  they  left 
the  premises,  and  to  distrain  them  dam- 
age-feasant.  2  Rev.  St.  427.  But  it  is  not 
necessary'  to  decide  whether  the  defendant 
detained  the  property  rightfully  or  wrong- 
fully. 

The  plaintiff  attempted  to  enter  upon 
the  lands  of  the  defendant  and  against  his 
will,  for  the  purpose  of  taking  away  his 
property.  This  he  had  no  right  to  do, 
even  though  his  property  was  unlawfully 
detained  there.  If  the  plaintiff  could  not 
regain  the  possession  of  his  property  peace- 
ably, he  should  have  resorted  to  his  legal 
remedy,  by  which  he  could,  after  demand 
and  refusal,  have  recovered  the  property 
itself  or  its  value.  He  had  no  right  to  re- 
dress himself  bv  force.     1  Bl.  Comm.  4.     In 


pursuing  his  object,  the  plaintiff  tore  down 
the  defendant's  fence  after  he  had  been  for- 
bidden to  enter,  and  after  he  had  been  or- 
dered by  the  defendant  to  desist.  The 
defendant  had  a  right  to  protect  himself 
in  the  enjojMuent  of  his  possession  and  his 
property,  by  defending  them  against  such 
aggression.  Weaver  v.  Bush,  S  Term  R. 
78;  Gregory  v.  Hill,  Id.  299;  Greene  v, 
Jones,  1  Saund.  296,  note  1;  Green  v.  God- 
dard,2Salk.  641;  Turner  v.  Meymott,  1 
Bing.  158;  3  Bl.  Comm.  5. 

The  defendant  cannot  be  held  liable  for 
the  injuries  inflicted  upon  the  plaintiff  on 
the  occasion  in  question,  unless  he  used 
more  force  than  was  necessary  for  the  de- 
fense of  his  possession  ;  audit  seems  he  did 
not  use  enough  to  prevent  the  plaintiff's 
effecting  his  forcible  entry  and  taking 
away  the  property'.  But  that  was  a  ques- 
tion proper  to  be  submitted  to  the  jurj'. 
The  judgment  of  the  circuit  court  must  be 
reversed,  and  a  new  trial  awarded,  costs 
to  abide  the  event. 


(1  N.  Y.  515.) 
Van  LEUvt:N  v.  Lvke  et  al. 

{CouH  of  Appeals  of  New  York.     Isov.,  1S48.) 

1.  Trespass  to  Laxd — Domestic  Aximals. 

The  owner  of  domestic  animals  is  liable  for 
injuries  committed  by  them  while  trespassing 
on  the  close  of  another,  irrespective  of  knowl- 
edge of  their  vicious  propensities;  but  he  is  not 
liable  for  injuries  by  them  unless  they  were  tres- 
passing, or  he  has  knowledge  of  their  vicious 
propensities. 

2.  Same. 

Plaintiff's  cow  and  calf  were  killed  by  being 
bitten  bj'  defendants'  sow  and  pigs  in  plaintiff's 
close,  while  the  cow  was  in  the  act  of  calving. 
Held,  that  plaintiff  could  not  recover,  as  he  did 
not  allege  in  his  declaration  or  prove  at  the  trial 
that  defendants  knew  of  such  vicious  propensity 
on  the  part  of  the  sow  and  pigs,  or  that  the  animals 
were  trespassing  on  plaintiff's  close. 

Error  to  supreme  court. 

Action  of  trespass  brought  in  a  justice's 
court.  Plaintiff  recovered  judgment, 
which  was  affirmed  on  certiorari  by  the 
court  of  common  pleas,  but  reversed  bj' 
the  supreme  court  on  error.  4  Denio,  127. 
To  review  the  judgment  of  the  supreme 
court  plaintiff  brought  error. 

Mr.  Sclioonmiikt'r,  for  plaintiff  in  error. 
T.  E.  West  brook,  for  defendants  in  error. 

Jewett,  C.  J.  It  is  alleged  in  the  plain- 
tiff's declaration  "that  on  the  27th  day  of 
November,  1844,  at"  etc.,  "the  defendants 
were  the  owners  of  a  certain  sow  and  pigs, 
which  sow  and  pigs,  to-wit,  on  the  day 
and  year  aforesaid,  to-wit,  at  the  place 
aforesaid,  bit,  damaged,  and  mutilated 
and  mangled  a  certain  cow  and  calf  oi  the 
plaintiff,  while  the  said  cow  was  in  the 
act  of  calving,  so  that  said  cow  and  calf 
both  died,  to  the  plaintiff's  damage  .1^50;" 
to  which  the  defendants  pleaded  the  gen- 
eral issue.  There  wa.s  evidence  given  on 
the  trial  sufficient  to  warrant  the  jury  in 
finding  that  the  plaintiff's  cow  and  calf 
were  destroyed  by  the  defendants'  sow 
and  pigs  in  the  manner  set  forth  in  the  dec- 
laration, upon  the  land  of  the  plaintiff, 
where  the  sow  and  pigs  were  at  the  time 
of  committing  the  said  injury.  But  there 
is  no  allegation  in  the  declaration,  or  evi- 
dence given  on  the   trial,  that  swine  pos- 


TRESPASS  TO  LAND. 


153 


sess  natural  propensities  which  lead  them, 
instinctively,  to  attack  or  destroy  animals 
in  tlie  condition  of  plaintiffs  cow  and  calf. 
Nor  is  there  any  allegation  or  evidence 
tiiut  the  defendants  previously  knew,  or 
had  notice,  that  their  swine  were  accus- 
tomed to  do  such  or  similar  mischief,  or 
that  the  swine  br(jke  and  entered  the 
plaintiff's  close,  and  there  committed  the 
mischief  complained  of. 

.  It  is  a  well-settled  i)rinciple  that,  in  all 
cases  where  an  action  of  trespass  or  case 
is  brought  for  mischief  done  to  the  person 
or  personal  property  of  another  by  ani- 
mals iiumsnet:i:  nutune,  such  as  horses, 
oxen,  cows,  sheep,  swine,  and  the  like,  the 
owner  must  be  shown  to  have  had  notice 
of  their  viciousness  before  he  can  be 
charged,  because  such  animals  are  not  by 
nature  fierce  or  dangerous,  and  such  no- 
ticemust  bealleged  in thedeclaration  ;  but 
as  to  animals  fene  nntunn,  such  as  lions, 
tigers,  and  the  like,  the  person  who  keeps 
them  i«  liable  for  any  damage  they  may 
<lo.  Avithout  notice,  on  the  ground  that  by 
nature  such  animals  are  fierce  and  danger- 
ous. 9  Bac.  Abr.  tit.  "Trespass,"  1-505, 
506;  Jenkins  V.  Turner,  1  Ld.  Raym.  109; 
Mason  V.  Keeling,  Id.  600.12  Mod.  382;  Rex 
V.  Huggins,  2  Ld.  Raym.  15S3,  1  Chit.  PI. 
(Ed.  1S12. )  09,  70;  Vrooman  v.  Lawyer,  13 
Joiins.  .339;  Hinckley  v,  Emerson,  4  Cow. 
351.  Butthis  ruledoes  not  apply  wiiere  the 
mischief  is  done  by  such  animals  while  com- 
mitting a  trespass  upon  the  close  of  an- 
other. 

The  common  law  holds  a  man  answera- 
ble, not  only  for  his  own  trespass,  but  also 
ft)r  that  of  his  domestic  animals;  and  as 
it  is  the  natural  and  notorious  propensity 
of  many  such  animals,  such  as  horses, 
oxen,  sheep,  swine,  and  the  like,  to  rove, 
the  owner  is  bound,  at  his  peril, to  confine 
them  on  his  own  land  ;  and  if  they  escape, 
and  commit  a  trespass  on  the  lands  of  an- 
other, unless  through  defect  of  fences  wliich 
the  latter  ought  to  repair,  the  owner  is 
liable  to  an  action  of  trespass  qaare  clnns- 
iiiii  frf^it,  though  he  had  no  notice  in  fact 
of  such  propensity'.  3Bl.Comm.  211 ;  1  Chit. 
I'l.  70.  And  where  the  owner  of  such  ani- 
mals does  not  confine  them  on  his  own 
land,  and  they  escape  and  commit  a  tres- 
l)ass  on  the  lands  of  another,  without  the 
fault  of  the  latter,  the  law  deems  the  own- 
er himself  a  trespasser  for  having  permit- 
ted his  animals  to  break  into  the  inclos- 
ure  of  the  former  under  such  circumstan- 
ces; and,  in  declaring  against  the  defend- 
ant in  an  action  for  such  trespass,  it  is 
■competent  for  the  plaintiff  to  allege  the 
breaking  and  entering  his  close  by  such 
animals  of  the  defendant,  and  there  com- 
mitting particular  mischief  or  injury  to 
the  person  or  propertj'  of  the  plaintiff, 
and.  upon  proof  of  the  allegation,  to  re- 
cover as  well  for  the  damage  for  the  un- 
lawful entrj'  as  for  the  other  injuries  so 
alleged,  by  way  of  aggravation  of  the 
trespass,  without  alleging  or  proving  that 
the  defendant  had  notice  that  his  animals 
had  Itoen  accustomed    to  do   such  or  simi' 


legation,  and   the  rest  is  laid  as  matter  of 
aggravation  only. 

This  principle  is  recognized  as  sound  by 
several  adjudged  cases.  In  thecaseof  Beck- 
with  v.  Shordike,  4  Burrows,  2092,  the  ac- 
tion was  trespass  for  entering  the  plain- 
tiff's close  with  guns  and  dogs,  and  killing 
his  deer.  The  evidence  showed  that  the 
defendants  entered  with  guns  and  dogs, 
into  a  close  of  the  plaintiff  adjoining  to 
his  paddock,  and  that  their  dog  pulled 
down  and  killed  one  of  the  plaintiff's  deer. 
It  was  held  to  be  sufficient  evidence  to 
prove  thedefendants  trespassers,  and  they 
were  held  liable  for  the  injury  done  by  their 
dog.  although  it  "v\*as  not  shown  that  they 
had  an3'  knowledge  or  notice  of  the  pro- 
pensity of  the  dog  to  do  such  or  similar 
iujurj'.  In  Angus  v.  Radin,  5  N.  J.  Law, 
815,  the  action  was  trespass  for  the  defend- 
ant's oxen  breaking  into  the  inclosure  of 
the  plaintiff,  and  there  goring  his  cow,  so 
as  to  kill  her;  and  upon  the  ground  that 
the  defendant  had  neglected  to  confine  his 
oxen  on  his  own  land,  and  that  they  were 
trespassing  on  the  land  of  the  plaintiff,  he 
was  held  liable  for  the  injury  done,  al- 
though it  was  not  alleged  or  proved  that 
he  knew  or  had  notice  of  the  propensity  of 
his  oxen  to  commit  such  an  injury.  And 
so  in  Dolph  v.  Ferris,  7  Watts  &  S.  367, 
Avhere  the  action  was  trespass  before  a 
justice  of  the  peace,  and  there  tritd  with- 
out anj-  declaration  having  been  filed. 
Therefore  the  court  held  that  the  case 
must  be  considered  as  if  the  case  had  been 
tried  on  the  most  favorable  declaration 
for  the  plaintiff  which  the  evidence  would 
have  warranted.  The  evidence  was  that 
the  bull  of  the  defendant,  which  was  run- 
ning at  large,  broke  and  entered  into  the 
inclosure  of  the  plaintiff,  where  his  horse 
was  feeding  on  the  grass  growing  therein, 
and  gored  him  so  that  he  died  by  reason 
thereof  in  a  few  days.  The  court  held  it 
to  be  clear  from  the  evidence  that  the  de- 
fendant might  have  been  declared  against 
for  having  broken  and  entered  the  close  of 
the  plaintiff,  antl  the  grass  and  herbage 
of  the  plaintiff  there  lately  growing  with 
his  bull  eaten  up,  trod  down,  and  con- 
sumed, and  might  also  have  been  charged 
in  the  same  declaration  with  having  killed 
or  destroyed  the  plaintiff's  horse  or  colt 
with  his  bull.  But  in  the  case  under  con- 
sideration there  is  no  allegation  charging 
the  defendants'  swine  with  doing  any 
act  for  which  the  law  holds  the  defendants 
accountable  to  the  plaintiff  without  alleg- 
ing and  proving  a  scienter.  Had  the  plain- 
tiff stated  in  his  declaration  such  ground 
of  liability,  or  had  charged  that  the  swine 
broke  and  entered  his  close,  and  there  com- 
mitted the  mischief  complained  of,  and 
sustained  his  declaration  by  evidence,  I 
am  of  opinion  that  he  would  have  been 
entitled  to  recover  all  the  damages  thus 
sustained ;  but.  as  he  has  not  stated  in  his 
declaration  either  ground  of  liability,  the 
defendants  ought  not  to  be  deemed  to 
have  waived  the  objection  by  not  making 
it  specifically   before  the  justice.     I  think 


larmischief.    Thebreakingand  enteringthe    the  judgment  should  be  affirmed. 
ck)se  in  such   action  is  the   substantive  al- '     Judgment  aflRrmed. 

(See.  also.  Telegraph  Co.  v.  Barnett,  107  111.  507;  Mairs  v.  Real-Estate  Ass'n.  SO  N.  Y.  408;  Telegraph 
Co.  V.  Middleton.  80  N.  Y.  408:  Brown  v.  Perkins,  1  Allen,  89;  Gregory  v.  Piper,  9  Barn.  &  C.591; 
Paul  v.  Summerhayes,  4  Q.  B.  Div.  9;  Anthony  v.  Haneys,  S  Bing.  186.) 


154 


LAW  OF  TORTS. 


II.  TRESPASS  IS  AN  INJURY  TO  THE  POSSESSION. 


(15  111.  558.) 

Halligan  v.  Chicago  &  R.  I.  R.  Co. 

(Supreme  Court  of  niinois.     June  Term,  1854.) 

1.  Trespass  to  Lands— Who  mat  Maintain. 

The  gist  of  the  action  of  trespass  to  lands  is 
the  injury  to  the  possession,  and  he  only  can 
maintain  the  action  who  either  has  or  is  entitled 
to  the  possession.  Where  the  land  is  occupied 
by  the  owner's  tenant,  the  owner  cannot  maintain 
the  action. 
8.  Same— Pleading— Duplicity. 

A  single  trespass  may  be  committed  on  several 
closes,  and  one  action  maintained  therefor  as  one 
trespass. 

Appeal  from  circuit  court,  La  Salle 
county. 

Action  of  trespass  to  land,  brought  by 
Patrick  Halligan  against  the  Chicago  & 
Rock  Island  Railroad  Company.  Defend- 
ant's demurrer  to  the  declaration  was 
su.stained,  and  plaintiff  appealed. 

T.  L.  Dickey  and  D.  Eastman,  for  appel- 
lant. Chumasero  &  Taylor,  for  appel- 
lee. 

Treat,  C.  J.  This  was  an  action  of 
trespass  quare  clausuin  freffit,  brought  by 
Halligan  against  the  Chicago  &  Rock  Isl- 
and Railroad  Company.  The  first  three 
counts  of  the  declaration  alleged,  in  sub- 
stance, that  the  defendant,  on  the  1st  of 
January,  1853,  broke  and  entered  two 
closes,  the  property  of  the  plaintiff,  situ- 
ated in  the  county  of  La  Salle,  and  de- 
scribed as  the  west  half  of  lot  10,  in  block 
152,  and  lot  3,  in  block  16,  in  the  city  of 
Peru,  and  pulled  down  and  destroyed  two 
houses  standing  thereon.  The  fourth 
count  alleged  that  the  defendant,  "on  the 
day  and  year  aforesaid,  with  force  and 
arms,  broke  and  entered  the  aforesaid 
closes  of  the  said  Patrick  Halligan,  and 
then  and  there  ejected,  expelled,  put  out, 
and  amoved  thesaid  Patrick  Halliganand 
his  family  and  servants,  and  divers  other 
persons,  to- wit,  Michael  Pendergast  and 
Alexander  Frinkler,  tenants  of  the  said 
Patrick  Halligan,  (said  tenants  then  and 
there  using  and  occupying  said  premises 
for  hire,  and  paying  unto  the  said  Pat- 
rick Halligan  therefor  at  the  rate  of  $1,000 
per  annum,)  from  the  possession,  use,  oc- 
cupation, and  enjoyment  of  the  said  prem- 
ises, and  kept  and  continued  the  said  Pat- 
rick Halligan  and  his  family  and  serv- 
ants, and  also  his  said  tenants,  so  ejected, 
expelled,  put  out,  and  amoved,  for  a  long 
space  of  time,  to-wit,  from  thence  hither- 
to ;  whereby  the  said  Patrick  Halligan, 
for  and  during  all  that  time,  lost  and 
was  deprived  of  the  use  and  benefit  of  the 
said  premises,  and  of  the  rents,  issues, 
and  profits  thereof,  accruing  to  the  said 
Patrick  Halligan  from  said  tenants,  to- 
wit,  at  the  county  aforesaid,  to  the  dam- 
age of  the  said  Patrick  Halligan."  The 
defendant  demurred  to  the  declaration, 
and  assigned,  as  special  causes  of  demur- 
rer to  the  fourth  count,  that  it  alleged 
two  distinct  causes  of  action,  and  showed 
the  locus  in  quo  to  have  been  in  the  pos- 
session of  other  parties.     The  court  ovei- 


ruled  the  demurrers  to  the  three  first 
counts,  and  sustained  the  demurrer  to 
the  fourth  count.  The  plaintiff  thereupon 
entered  nolle  prosequi  as  to  the  first  three 
counts,  and  the  defendant  had  judgment 
on  the  demurrer  to  the  fourth  count. 

The  question  in  the  case  is  whether  the 
fourth  count  shows  a  cause  of  action  in 
the  plaintiff.  The  first  objection  to  the 
count  is  not  tenable.  An  allegation  of  a 
trespass  to  two  or  more  closes  is  allowa- 
ble. A  single  trespass  may  be  committed 
on  several  closes.  If  a  party  at  the  same 
time  enters  upon  two  closes  belonging  to 
another,  he  may  be  ti*eated  as  guilty  of 
but  one  trespass.  The  owner  may,  on  a 
single  count,  recover  damages  commensu- 
rate with  the  injury.  This  count  alleges 
an  entry  on  both  lots  as  one  act,  and  is 
therefore  not  obnoxious  to  the  charge  of 
duplicity.  See  Tapley  v.  Wainwright,  5 
Barn.  &  Adol.  395;  Phythian  v.  White,  1 
Mees.   «&  W.  216. 

To  maintain  trespass  quare  c'.ausum 
fvegit,  the  plaintiff  must  have  the  actual 
or  constructive  possession  of  the  prem- 
ises. The  gist  of  the  action  is  the  injui-y 
to  the  possession.  If  the  premises  are  oc- 
cupied, the  action  must  be  brought  by  the 
party  in  possession;  if  unoccupied,  by  the 
party  having  the  title  and  the  right  to 
the  possession.  The  owner  cannot  main- 
tain the  action,  where  the  land  is  in  the 
occupancy  of  his  tenant.  The  trespass  is 
a  disturbance  of  the  tenant's  possession, 
and  he  alone  can  bring  the  action.  Bac. 
Abr.  "Trespass,"  c.  3;  1  Chit.  PI.  202; 
Campbell  v.  Arnold,  1  Johns.  511;  Holmes 
v.Seely,  19  Wend.  507;  Bartlett  v.  Perkins, 
13  Me.  87;  Roussin  v.  Benton,  6  Mo.  592; 
Davis  v.  Clancy, 3  McCord,  422.  If  the  tres- 
pass is  prejudicial  to  the  inheritance,  the 
remedy  of  the  owner  is  by  an  action  on 
the  case.  He  may,  in  that  form  of  action, 
recover  damages  for  any  injury  to  the 
freehold.  Bedingfield  v.  Onslow,  3  Lev. 
209;  Jesser  v.  Gifford,  4  Burrows,  2141; 
Lienow  v.  Ritchie,  8  Pick.  235;  Brown  v. 
Dinsmoor,  3  N.  H.  103;  Randall  v.  Cleave- 
land,  6  Conn.  328;  Hall  v.  Snowhill,  14 
N.  J.  Law,  8. 

If  Pendergast  and  Frinkler  were  in  the 
pos.session  of  the  lots  as  the  tenants  of 
the  plaintiff  when  the  injury  was  commit- 
ted, it  is  clear  that  they  alone  can  main- 
tain trespass.  In  such  event,  the  entry 
was  an  interference  with  their  possession. 
The  plaintiff  had  no  possession  to  be  in- 
vaded. For  an  injury  to  the  reversion,  he 
has  an  adequate  remedy  in  another  form 
of  action.  The  count  in  question  does  not 
disclose  a  state  of  case  that  entitles  the 
plaintiff  to  maintain  the  action  of  tres- 
pass. It  shows  that  the  lots  were  in  the 
actual  possession  of  his  tenants.  It  al- 
legesthat  his  "tenants  were  then  and  there 
using  and  occupying  said  premises  for 
hire,  and  paying  unto  him  therefor  at 
the  rate  of  f  1,000  per  annum."  This  lan- 
guage clearly  implies  a  leasing  of  the 
whole  of  the  lots,  and  an  exclusive  posses- 
sion thereof  by  the  tenants.  Nor  is  there 
anything  in  the  count   that  is  necessarily 


TRESPASS  TO  LAND. 


155- 


inconsLsfent  with  the  truth  of  this  aver- 
roent.  It  indeed  alleges  an  expulsion  of  the 
plaintiff  and  his  family  from  the  lots.  It 
may,  however,  be  that  they  were  tempo- 
rarily on  the  premises  as  the  guests  of  the 
tenants,  or  for  some  purpose  consistent 
with  an  exclusive  right  in  the  tenants.  If 
so,  the  injury  complained  of  only  amount- 
ed to  a  trespass  to  their  persons.  The 
count  does  not  show  such  a  possession  in 
the  plaintiff  as  authorizes  him  to  maintain 
trespass  quare  cluusum  fre.i>'it.  It  ought 
clearly  to  show  that  he  had  the  actual  or 
constructive  possession  of  the  premises, 
or  some  part  thereof.  If  the  lease  re- 
served a  part  of  the  lots,  or  if  the  plaintiff 
was  at  the  time  of  the  trespass  in  the  ex- 
clusive possession  of  some  portion  thereof, 
the  count  should  so  have  stated.  As  re- 
spects such  portion,  the  action  might  be 
sustained.  There  was  no  occasion  for  the 
plaintiff  to  refer  to  the  lease;  but,  having 
introduced  it  into  the  declaration,  it  was 
incumbent  on  him  to  show  that  it  did  not 
conclude  him  from  maintaining  the  action. 
There  are  some  cases  which  hold  that 
trespass  quare  clausum  fregit  may  be 
maintained  by  the  owner  for  an  injury  to 
the  freehold,  though  the  land  may  be  in 
the    possession    of    his    tenant    at     will. 


Starr  V.  Jackson,  11  Mass.  519;  Hingham 
V.  Sprague,  1.^  Pick.  102;  Curtiss  v.  Hoyt, 
19  Conn.  154;  Davis  v.  Nash,  32  Me.  411. 
And  it  is  insisted  that  this  action  may  be 
sustained  on  the  authority  of  these  cases. 
But  there  is  a  conclusive  answer  to  this 
position.  It  does  not  appear  that  the 
parties  in  possession  were  the  tenants  at 
will  of  the  plaintiff.  The  precise  character 
of  the  tenancy  is  not  stated  in  the  declara- 
tion. It  is  alleged  that  Pendergast  and 
Frinkler  were  the  lessees  of  the  premises, 
paying  rent  therefor  at  the  rate  of  $1,000 
per  annum.  The  inference  from  this  state- 
ment is  that  the  demise  was  for  a  definite 
period,  as  a  month  or  a  year,  rather  than 
at  the  mere  will  of  the  lessor.  In  order  ta 
sustain  the  case  on  the  ground  indicated, 
it  should  distinctly  appear  that  Pender- 
gast and  Frinkler  were  tenants  at  the 
will  of  the  plaintiff.  Intendments  are 
not  indulged  to  sustain  a  pleading.  If 
subject  to  the  charge  of  uncertainty  or 
ambiguity,  it  is  to  be  construed  most 
strongly  against  the  pleader.  If  an  alle- 
gation is  equivocal,  and  two  meanings 
present  themselves,  the  one  will  be  adopt- 
ed that  is  most  unfavorable  to  the  party 
pleading.  1  Chit.  PI.  272;  Steph.  PI.  379. 
The  judgment  is  affirmed. 


(See,  also,  Gunsolus  v.  Lormer,  54  "Wis.  630,  12  N.  W.  Rep.  62 ;  Bascom  v.  Dempsey,  143  Mass.  409, 
9  N.  E.  Rep.  744;  Alexander  v.  Hard,  64  N.  Y.  238;  Chandler  v.  Walker,  21  N.  H.  282;  More  v.  Perry, 
61  Mo.  174.) 


III.  TRESPASS  AB  INITIO. 


(8  Coke,  146a,  1  Smith,  Lead.  Cas.  62.) 

Six  Carpenters'  Case. 

{Court  of  King^s  Bench.  Michaelmas  Term,  1610.) 

1.  Trespass  to  Land — Ab  Initio. 

The  abuse  of  a  license  to  enter  premises  given 
by  law  makes  the  party  a  trespasser  ab  initio; 
but  otherwise  where  the  license  to  enter  was 
given  by  the  person  in  possession. 

2.  Same— What  Constitutes. 

Defendants  went  into  plaintiff's  public  tavern, 
ordered  and  drank  wine,  and  then  refused  to  pay 
for  it.  Held,  that  they  were  not  trespassers  ab 
initio;  for  the  mere  not  doing  is  no  trespass. 

In  trespass  brought  by  John  Vaux 
against  Thomas  Newman,  carpenter,  and 
five  other  carpenters,  for  breaking  his 
house,  and  for  an  assault  and  battery,  1st 
September,  7  Jac,  in  London,  in  the  par- 
ish of  St.  Giles  extra  Cripplegate,  in  the 
ward  of  Cripplegate,  etc.,  and  upon  the 
new  assignment,  the  plaintiff  assigned  the 
trespass  in  a  house  called  the  "Queen's 
Head."  The  defendants  to  all  the  tres- 
pass prseter  fractionem  doinus  i)leaded  not 
guilty,  and  as  to  the  breaking  of  the  house, 
said  that  thesaid  housep/'^eri'  tempnrequo, 
etc.,  et  din  antea  etpostea,  was  a  common 
wine  tavern,  of  the  said  John  Vaux.  with 
a  common  sign  at  the  door  of  the  said 
house  fixed,  etc.,  by  force  whereof  the  de- 
fendants, prsed'  tempore  quo,  etc.,  viz., 
hoi'a  quarta  post  meridiem  into  the  said 
house,  the  door  thereof  being  open,  did 
enter,  and  did  there  buy  and  drink  a  quart 
of  wine,  and  there  paid  for  the  same,  etc. 
The  [)laintiff,  by  way  of  replication,  did 
confess  that  the  said  house  was  a  com- 
mon  tavern,  and    that   they  entered   into 


it,  and  bought  and  drank  a  quart  of  wine, 
and  paid  for  it;  but  further  said  that  one 
.John  Ridding,  servant  of  the  said  .John 
Vaux,  at  the  request  of  the  said  defend- 
ants, did  there  then  deliver  them  anotlier 
quart  of  wine,  and  a  pennyworth  of 
bread,  amounting  to  8d.,  and  then  they 
there  did  drink  the  said  wine,  and  eat  tim 
bread,  and  upon  request  did  refuse  to  pay 
for  the  same:  upon  which  the  defendants 
did  demur  in  law:  and  the  only  point  in  this 
case  was,  if  the  denying  to  pay  for  the 
wine,  or  non-payment,  which  is  all  one 
(for  every  non-payment  upon  request,  is 
a  denying  in  laAv)  makes  the  entry  into 
the  tavern  tortious. 

And,  first,  it  was  resolved  when  an  en- 
try, authoritj',  ori  license  is  given  to  any 
one  by  the  law,  and  he  doth  abuse  it,  ho 
shall  be  a  trespasser  a/»/nitio;  but  where  an 
entry,  authority,  or  license,  is  given  by  the2 
party,  and  he  abuses  it,  there  he  must  be 
punished  for  his  abuse,  but  shall  not  be  a 
trespasser  ah  initio.  And  the  reason  of 
this  difference  is  that  in  the  case  of  a  peneral 
authority  or  license 3  of  law,  the  law  ad- 
judges by  the  subsequent  act  quo  aninio, 
or  to  what  intent,  he  entered ;  for  acta 
exteriora  indicant  interiora  secreta.-^  But 
when   the  party   gives    an    authority   or 


'2  RoUe,  Abr.  561;  Bagshaw  v.  Gaward,  Yelv. 
96,  97. 

23  Bl.  Comm.  213;  3  Hen.  VIL  lln;  Perk.  §  191; 
Bagshaw  v.  Gaward,  Yelv.  96,  97:  21  Edw.  IV.  19b. 

s2  Rolle,  Abr.  561;  21  Edw.  IV.  19b,  76b,  per 
Catesby  ;  Bagshaw  v.  Gaward,  Yelv.  96, 97 ;  Perk. 
§  191,  5  Hen.  VII.  lid. 

*  Vide  11  Hen.  IV.  75b. 


156 


LAW  OF  TORTS. 


license  himself  to  do  anything,  he  cannot, 
for  any  subsequent  cause,  punish  that 
which  is  done  by  his  own  authr)rity  or 
license,  and  therefore  the  law  gives  author- 
ity to  enter  into  a  common  inn  or  tav^ern  : 
so  to  the  lord  to  distrain ;  to  the  owner  of 
the  ground  to  distrain  damage-feasant; 
to  him  in  reversion  to  see  if  waste  be 
done;  to  the  commoner  to  enter  upon  the 
land  to  see  his  cattle,  and  such  Uke.^ 
But  if  he  who  enters  into  tiie  inn  or  tavern 
doth  a  trespass,  as  if  lie  6  carries  a  way  anj'- 
tliing;  or  if  the  lord  who  distrains  for 
rent  or  the  owner  for  damage-feasant, 
works  or  kills  the"  distress;  or  if  he  who 
enters  to  see  waste  breaks  the  house,  orS 
stays  thfre  all  night;  or  if  the  commoner 
cuts  down  a  tree;  in  these  and  the  like 
cases,  the  law  adjudges  that  he  entered  for 
that  purpose;  and  because  the  act  which 
demonstrates  it  is  a  trespass,  he  shall  be 
a  trespasser  fib  initio,  as  it  appears  in  ail 
the  said  books.  So  if  9  a  purveyor  takes 
my  cattle  by  force  of  a  commission,  for  the 
king's  house,  it  is  lawful;  but  if  he  sells 
them  in  the  market,  now  the  fii'st  taking  is 
wrongful;  and  therewith  agrees  18  Hen. 
VI.  VJb.     Et  sic  de  siwilibus. 

2.  It  was  resolved  per  totnm  curiam, 
that  10  not  doing  cannot  make  the  party 
who  has  authority  or  license  by  the  law  a 
trespasser  a 6 //jiY/o,  because  not  doing  is  no 
trespass;  and  therefore,  if  the  lessor  dis- 
trains for  his  rent,  and  thereupon  thelessee 
tenders  him  the  rent  and  arrears,  etc.,  and 
requires  his  beasts  again,  and  he  will  not  de- 
liver them,  this  not  doingcannot  make  him 
a  trespasser  a  ?>7Z27Yio,  and  therewith  agrees 
33  Hen.  VI.  47a.  So  if  a  man  takes  cattle 
damage-feasant,  and  the  other  offers  suffi- 
cient amends,  and  he  refuses  to  redeliver 
them,  now  if  he  sues  a  replevin,  he  shall 
recover  11  damages  only  for  the  detaining 
of  them,  and  not  for  the  taking,  for  that 
was  lawful;  and  therewith  agrees  Fitzh. 
>'at.  Brev.  69o-,  temp.  Edw.  I.  " Replevin, " 
27;  27Eliz.3,88;  45Eliz.3,9.  So  in  the  case 
at  bar,  for  not  12  paying  for  the  wine,  the 
defendants  shall  not  be  trespassers,  for  the 
denying  to  pay  for  it  is  no  trespass,  and 
therefore  they  cannot  be  trespassers  ab 
initio;  and  therewith  agrees  directly  in 
the  point  13  12  Edw.  IV.  9/j.  For  there 
PiGOT,  Serjt.,  puts  this  very  case,  if  one 
comes  into  a  tavern  to  drink,  and  when 
he  has  di'unk  he  goes  away,  and  will  not 
pa3'  the  taverner,  the  taverner  shall  have 
a.n  action  of   trespass  against  him  for  his 


entry.  To  which  Brian,  C.  J.,  said,  the 
said  case  w^hich  Pigot  has  put  is  noti* 
law.  for  it  is  no  trespass,  but  the  tav- 
erner shall  have  an  action  of  debt;  and 
therebeforeis  Bhown  held,  that  if  I  bring 
cloth  to  a  tailor,  to  have  a  gown  made,  if 
the  price  be  not  agreed  in  certain  before, 
how  much  I  shall  pay  for  the  making,  he 
shall  not  have  an  action  of  debt  against 
me;  which  is  meant  of  a  general  action  of 
debt:  but  the  tailor  in  such  a  case  shall 
have  16  a  special  action  of  debt:  soil,  that 
A.  did  put  cloth  to  him  to  make  a  gown 
thereof  for  the  said  A.  and  that  A.  would 
pa.y  him  as  much  for  making,  and  all  the 
necessaries  thereto,  as  he  should  deserve, 
and  that  for  making  thereof,  and  all  neces- 
saries thereto,  he  deserves  so  much,  for 
which  he  brings  his  action  of  debt:  in  that 
case,  the  pu  tting  of  his  cloth  to  the  tailor  to 
be  made  into  a  gown, is  sufficient  evidence 
to  prove  the  said  special  contract,  for  the 
law  implies  it:  and  if  the  tailor  over- 
values the  making,  or  the  necessaries  to 
it,  the  jury  may  mitigate  it,  and  the 
plaintiff  shall  recover  so  much  as  they 
shall  find,  and  shall  be  barred  for  the  resi- 
due. But  if  the  tailor  (as  they  use)  makes 
a  bill,  and  he  himself  values  the  making 
and  the  necessaries  thereof,  he  shall  not 
have  an  action  of  debt  for  his  own  value, 
and  declare  of  a  retainer  of  him  to  make  a 
gown,  etc.,  for  so  much,  unless  it  is 
so  especially  agreed.  But  in  such  case  he 
may  1'''  detain  the  garment  until  he  is  paid, 
as  the  hostler  may  the  horse. is  And  all 
this  was  resolved  by  the  court.  Vide  the 
book  in  30  Ass.  pi.  38,  John  Matrever's 
Case,  it  is  held  by  the  court,  that  if  the 
lord  or  his  bailiff  comes  to  distrain,  and  i9 
before  the  distress  the  tenant  tenders  thear 
rears  upon  theland,  there  the  distress  taken 
for  it  is  tortious.  The  same  law  for  dam- 
age-feasant, if  before  the  distress  he  tenders 
sufficient  amends;  and  therewith  agrees 
7  Edw.  III.  86,  in  the  Mr.  of  St.  Mark's  Case; 
and  so  is  tne  opinion  of  Hull  to  be  under- 
stood in  13  Hen.  IV.  20  17/),  which  opinion 
is  not  well  abridged  in  title  "Trespass," 
180.  Note,  reader,  this  difference,  that  ten- 
der upon  the 21  land  before  the 22  distress, 
makes  the  distress  tortious;  tender  after 
the  distress,  and  befoi-e  the  impounding, 
makes  the  detainer,  and  not  the  taking, 
wrongful:  tender  after 23  the  impounding, 
makes  neitlier  the  one  nor  the  other 
wrongful ;  for  then  it  comes  too  late,  be- 
cause then  the  cause  is  put  to  the  trial  of 


»  Vide  12  Edw.  IV.  Sb;  21  Edw.  IV.  19b;  5  Hen. 
VII.  11a;  9  Hen.  VI.  29b;  11  Hen.  IV.  75b;  3  Hen. 
VII.  1.5b;  28  Hen.  VI.  .5b. 

« Perk.  §  191 ;  2  Edw.  IV.  5 ;  Daw  v.  Golding, 
Cro.  Car.  196;  Bagshaw  v.  Gaward,  Yelv.  96. 

'12  Edw.  IV.  ><h;  Bowman's  Case,  9  Coke,  11a; 

1  And.  65;  Bagshaw  v.  Gaward,  Cro.  Jac.  148; 
Perk.  §  191. 

8  2  Rolle,  Abr.  561:  11  Hen.  IV.  75b;  Fitzh.  Nat. 
Brev.  "Trespass, "  176;  Brooke,  Abr.  "Ti-espass, " 
^7;  Brooke,  Abr.  "Replica.  "  12. 

93  Rolle,  Abr.  561;  IS  Hen.  VI.  9b;  2  Inst.  546. 
'''Daw  v.  Golding,  Cro.  Car.  196;  Isaackv.  Clark, 

2  Bulst.  312;  1  Rolle,  130;  Shapcott  v.  Mugford,  1 
Ld.  Raym.  188;  Mayse  v.  Cocksedge,  Willes,  637; 
Winterbourne  v.  Morgan,  11  East,  402. 

'>Beare  &  Hodge's  Case,  Litt.  R.  34;  Doct.   & 
Stud.  lib.  2,  112b;  Het.  16. 
>-Isack  V.  Clarke,  1  Rolle,  60,  2  Bulst.  312. 
"Roberts  v.  Herbert,  1  Sid.  5;  12  Eliz.  4,  9u,  9b. 


"  12  Edw.  IV.  9b,  N.    It  is  good  law. 

16  12  Edw.  IV,  9b. 

"Roberts  v.  Herbert,  1  Sid.  5. 

I'Cowper  V.  Andrews,  Hob.  42;  Hostler's  Case, 
Yelv.  67;  Chapman  v.  Allen,  Cro.  Car.  271,  272; 
Bradb.  Dist.  71;  Warren  v.  Perkins,  Palm.  223; 
Mackerney  v.  Erwin,  Hut.  101;  22  Edw.  IV.  49b; 
Watbroke  v.  Griffith,  Moore,  877;  5  Edw.  IV.  2b; 
Robinson  v.  Waller,  1  Rolle,  449;  Rosse  v.  Bram- 
steed,  2  Rolle,  438 ;  2  Rolle,  Abr.  So,  92 ;  Robinson 
v.  Walter,  3  Bulst.  269,  270. 

"  Viae  Bradb.  Dist.  70. 

19 Bradb.  Dist.  37;  Br.  Tender,  etc..  18. 

202  Rolle,  Abr.  561. 

21 2  Sid.  40. 

22Pilkington's  Case,  5  Coke,  76a;  2  Inst.  107. 

23  2  Rolle,  Abr.  561;  1  Brown  &  G.  173;  2  Inst. 
107;  Pilkingtou's  Case,  5  Coke,  76a;  12  Mod.  461; 
Winnard  v.  Foster,  Lutw.  1596;  Gilb.  Ch.  82. 


TRESPASS  TO  LAND. 


157 


the  law,  to  be  there  determined.  But  aft- 
er the  law  has  determined  it,  and  the 
avowant  has  returned  irreplevisable,  yet 
if  the  plaintiff  makes  him  a  sufficient 
tender,  he  may  have  an  action  of  detinue 
for  the  detainer  after;  or  he  may,  upon 
satisfaction  made  in  court,  have  a  writ 
for  the  redelivery  of  his  jjoods;  and  there- 
with atrree  the  said  books  in  13  Hen.  IV. 


17ft;  14  Hen.  IV.  4;  Eegistr' Judic',  37;  45 
Edw.  Iir.9;  and  all  the  books  before.  Vide 
14  Edw.  IV.  4h;  2  Hen.  Vi.  12;  22  Hen.  VI. 
57;  Doct.  &  Stud.  lib.  2,  c.  27;  Bradb.Dist. 
72,  and  Pilkington's  Case,  in  the  fifth  part 
of  my  Reports,  fol.76,and  so  all  the  l)ooks 
which  prima  facie  soimi  to  disagree,  are 
upon  full  and  pregnant  reason  well  recon- 
ciled and  agreed. 


(See,  also,  Allen  v.  Crofoot,  5  Wend.  506;  Jewell  v.  Mahood,  44  N.  H.  474;  Esty  v.  Wilmot,  15  Gray, 
168;  DLngley  v.  Buffum,  57  Me.  379;  Narehood  v.  Wilhelm,  69  Pa.  St.  64;  Brock  v.  Stimson,  103  Mass. 
520.) 


IV.  TRESPASS  BY  JOINT  TENANT. 


(7  Man.,  G.  &  S.  441.) 

Murray  et  al.  v.  Hall. 

(Court  of  Common  Pleas.    Feb.  14, 1849.) 

Trespass  to  Laxd — Ouster  of  Co-Texaxt. 

Trespass  will  lie  by  one  tenant  in  common  against 
another  for  an  actual  ouster  of  possession. 

Rule  to  show  cause  why  nonsuit  should 
not  be  entered. 

Action  of  trespass  brought  by  Murray, 
Ash  &  Kenned}-  for  breaking  and  entering 
the  dweiiing-houHe  of  plaintiffs,  and  ex- 
pelling them  therefrom,  and  seizing  and 
converting  their  goods.  On  the  trial  be- 
fore Matle,  J.,  it  appeared  that  the  prem- 
ises in  question  had  been  leased  by  defend- 
ant, Hall,  to  the  three  plaintiffs  and  one 
Hart  for  a  coffee-room,  and  that  Hart 
surrendered  his  interest  to  Hall,  who  sub- 
sequently, with  Hart,  forcibly  expelled 
from  the  premises  the  person  put  in  charge 
thereof  by  plaintiffs,  and  kept  possession. 
A  verdict  was  rendered  for  plaintiffs  for 
£35  damages.  Defendant,  on  leave  re- 
served at  the  trial,  obtained  a  rule  nisi  to 
enter  a  nonsuit. 

Mr.  Pa/rj',  for  defendant.  Mr.  Cbannell, 
Serj.,  and  Mr.  Wallinger,  for  plaintiffs. 

CoLTMAX,  J.  This  was  an  action  for 
breaking  and  entering  the  plaintiffs' dwell- 
ing-house, and  e.xpelling  them  therefrom  ; 
to  which  the  defendant  pleaded — Fii\ft,Tiot 
guilty;  .seco/i t/7.v',  leave  and  license;  third- 
ly, a  denial  that  the  dwelling-house  was 
the  plaintiff.s'.  At  the  trial  before  Maule, 
J.,  one  ground  of  defense  was  that  the  de- 
fendant was  tenant  in  common  of  the 
house  with  the  plaintiffs,  and  that,  there- 
fore, the  action  was  not  maintainalde. 
The  learned  juflge  told  the  jury  that,  if  the 
evidence  satisfied  tliem  that  there  had  been 
an  actual  expulsion  of  the  plaintiffs  from 
the   house  by  the  defendant,  their  verdict 


ought  to  be  for  the  plaintiffs.  The  jury 
found  for  the  plaintiffs  damages  £35.  The 
defendant  afterwards  obtained  a  rule  to 
show  cause  why  a  nonsuit  should  not  be 
entered,  (pursuant  to  leave  given  at  the 
trial.)  on  the  ground  that  one  tenant  in 
comraoncannot  maintain  trespass  against 
another,  even  though  there  has  been  an 
actual  expulsion.  On  showing  cause,  it 
was  argued  (before  the  lord  chief  justice, 
and  Justices  Coltmax,  Cresswell.  and 
V.  Williams,)  that  this  defense,  even  if 
sustainable,  ought  to  have  been  specially 
pleaded.  It  is  unnecessary  to  give  any 
opinion  on  this  point,  for  we  are  of  opin- 
ion that  the  defense  is  not  sustainable. 
The  court  has  felt  some  diffi'julty  on  the 
question,  by  reason  only  of  the  doubts  ex- 
pressed by  LiTTLEDALE,  J.,in  his  judgment 
in  Cubitt  v.  Porter.  8  Barn.  &  C.  2G9.  That 
learned  judge  there  said  that  although,  if 
there  has  been  actual  ouster  by  one  tenant 
in  common,  ejectment  will  lie  at  the  suit 
of  the  other,  yet  he  was  not  aware  that 
trespass  would  lie;  for  that,  in  trespass, 
the  breaking  and  entering  is  the  gist  of 
the  action,  and  the  expulsion  or  ouster  is 
a  mere  aggravation  of  the  trespass  ;  and 
that,  therefore,  if  the  original  trespass  be 
lawful,  trespass  will  not  lie.  It  appears, 
however,  to  us  difficult  to  understand  why 
trespass  should  not  lie,  if  ejectment  (  which 
includes  trespass)  maybe  maintained  (as 
it  confessedly  may)  on  an  actual  ouster. 
And  as  it  has  been  further  established  in 
the  case  of  Goodtitle  v.  Tombs,  3  Wils.118, 
that  a  tenant  in  common  may  maintain 
an  action  of  trespass  for  mesne  profits 
against  his  companion,  it  appears  to  us 
that  there  is  no  real  foundation  for  the 
doubts  suggested.  We  are  therefore  of  the 
opinion  that  the  direction  of  Mal'le,  J., 
at  the  trial  was  right,  and  consequently 
this  rule  must  be  discharged. 
Rule  discharged. 


(See,  also.  Filbert  v.  Hoff,  42  Pa.  St.  97;  Byatn  v.  Bickford,  140  Mass.  31,  2  N.  E.  Rep.  687;  Dubois 
V.  Beaver,  25  N.  Y.  123,  12S.) 


V.  DEFENSES:— LICENSE,  NECESSITY,  ETC. 


(15  Gray,  441.) 
Giles  v.  Simoxus. 

(Supreme  Judicial  Court  of  Massachusetts. 

June,  ISOO. ) 

Trespass  to  Laxd  —  Sale  of  Staxdixg  Trees — 

License  to  Enter — R,evocation. 

A  verbal  contract  for  the  sale  of  standing  trees, 

to  be  cut  and  removed  by  the  purchaser,  gives  an 


implied  license  to  enter  for  the  purpose  of  cut- 
ting and  removing  the  same.  But  such  license 
is  revocable  at  any  time,  even  after  fall  consid- 
eration paid,  except  as  to  an  entry  for  the  pur- 
pose of  removing  those  trees  cut  before  the  rev- 
ocation. 

Exceptions  from  superior  court,  Frank- 
lin county. 


158 


LAW  OF  TORTS. 


Action  of  tort  for  breaking  and  entering 
l^laintiff' s  close,  and  catting  trees  stand- 
ing thereon,  which  defendant  justified  un- 
der a  veibal  contract  of  sale  of  the  trees. 
The  consideration  had  been  paid,  and 
Ijart  of  the  trees  had  been  felled  and  re- 
moved, when  plaintiff  revoked  his  license 
to  go  upon  the  land.  The  jury  found  a 
verdict  for  defendant.  Plaintiff  alleged 
exceptions. 

C.  Allen  and  S.  T.  Field,  for  plaintiff.  A. 
Braiuard,  for  defendant. 

BiGELOW,  J.  If  the  plaintiff  had  a  right 
to  revoke  the  license  to  enter  upon  his 
land,  under  which  the  defendant  seeks  to 
justify  the  acts  of  trespass  alleged  in  the 
declaration,  it  is  entirely  clear  that  the 
verdict  rendered  in  favor  of  the  defendant 
cannot  stand.  The  decision  of  the  case 
turns,  therefore,  on  the  question  whether 
an  owner  of  land,  who  has  entered  into  a 
verbal  contract  for  the  sale  of  standing 
wood  and  timber  to  be  cut  and  severed 
from  the  freehold  by  the  vendee,  can,  at 
his  pleasure,  revoke  the  license  which  he 
thereby  gives  to  the  purchaser  to  enter  on 
his  land,  and  cut  and  carry  away  the 
wood  or  timber  included  in  the  contract. 
That  such  a  contract  is  not  invalid  as 
passing  an  interest  in  the  land  is  too 
well  settled  to  admit  of  doubt.  It  is  only 
an  executory  contract  of  sale,  to  be  con- 
strued as  conveying  an  interest  in  the 
trees  when  they  shall  be  severed  from  the 
freehold,  and  shall  become  converted  into 
personal  property.  Nor  does  the  per- 
mission to  enter  on  the  land,  which  such 
a  contract  expressly  or  by  implication 
confei-s  on  the  vendee,  operate  to  create 
or  vest  in  him  any  estate  or  interest  in 
the  premises.  It  is  only  a  license  or  au- 
thority to  do  certain  acts  on  the  land, 
which  but  for  such  license  or  authority 
would  be  acts  of  trespass.  If  it  were  oth- 
erwise, if  under  such  a  contract  a  right 
were  conferred  on  the  vendee  to  enter  on 
the  land,  and  then  to  exercise  a  right  or 
privilege  at  his  own  pleasure,  free  from 
the  control  of  the  owner  of  the  land,  dur- 
ing the  continuance  of  the  contract,  it 
would  clearly  confer  on  the  vendee  a  right 
or  interest  in  the  premises,  which  would 
contravene  the  statute  of  frauds.  Rev. 
St.  c.  74,  §1.  There  can  be  no  doubt  that 
a  valid  license  to  enter  on  land  may  be 
given  by  parol.  But  this  rule  rests  on  the 
distinction  that  a  license  is  only  an  au- 
thority to  do  an  act,  or  series  of  acts,  on 
the  land  of  another,  and  passes  no  estate 
or  interest  therein. 

The  nature  and  extent  of  the  right  or 
authority'  conferred  by  a  license,  and  how 
far  it  is  within  the  power  of  the  licensor 
to  modify  or  revoke  it,  have  given  rise  to 
much  discussion  and  many  nice  and  sub- 
tle distinctions  in  the  books,  as  well  as 
conflicting  decisions  in  the  c(mrts  of  com- 
mon law.  Certain  principles,  however, 
seem  now  to  be  well  settled.  If  the  owner 
of  land  sells  chattels  or  other  personal 
property  situated  on  his  land,  the  vendee 
thereby  obtains  an  implied  license  to  en- 
ter on  the  premises,  and  take  possession 
of  and  remove  tne  property.  In  such  case 
the  license  is  coupled  with  and  supported 
*)y  a  Valid  interest  or  title  in  the  property 


sold,  and  cannot  be  revoked.  Wood  v. 
Manley,  11  Adol.  &  E.  34;  Heath  v.  Ean- 
dall,  4  Cush,  195.  So,  too,  if  the  owner  of 
chattels  or  other  personal  property,  by 
virtue  of  a  contract  with  or  the  permis- 
sion of  the  owner  of  land,  places  his  prop- 
erty on  the  land,  the  license  to  enter  upon 
it,  for  the  purpose  of  taking  and  remov- 
ing the  propertv,  is  irrevocable.  Patrick 
V.  Colerick,  3  Mees.  &  W.  483;  Russell  v. 
Richards,  10  Me.  429,  and  11  Me.  371. 
Smith  V.  Benson,  1  Hill,  176.  The  right 
of  property  in  the  chattels  draws  after  it 
the  right  of  possession.  The  license  to  en- 
ter on  land  to  f)btain  possession  of  them 
is  subsidiary  to  this  right  of  property, 
which  cannot  be  enjoyed  if  the  license  he 
withdrawn  or  terminated.  This  right 
in  the  chattels  is  not  derived  from  the 
license,  but  exists  in  the  owner  by  virtue 
of  a  distinct  and  separate  title,  the  validi- 
ty of  which  in  no  way  depends  on  any 
right  or  interest  in  the  land.  But,  with 
the  assent  of  the  owner  of  the  land,  the 
property  has  been  placed  in  a  situation 
where  it  cannot  be  used  or  enjoyed  except 
by  a  license  to  enter  upon  his  land.  The 
continuance  of  this  license  is  therefor  es- 
sential to  the  enjoyment  of  the  right.  It 
would  be  a  manifest  breach  of  good  faith 
to  permit  such  a  license  to  be  revoked. 
No  man  should  be  permitted  to  keep  the 
property  of  others  by  inducing  them  to 
place  it  upon  his  laud,  and  then  denying 
them  the  right  to  enter  to  regain  its  pos- 
session. A  part\'  is  therefore  not  permit- 
ted to  withdraw  his  consent,  bj'  setting 
up  his  title  to  the  land,  after  it  has  been 
acted  on  by  others,  and  when  their  rights 
will  be  impaired  or  lost  by  its  withdraw- 
al. In  like  manner,  ard  for  similar  rea- 
sons, a  license  to  enter  on  land  for  the 
purpose  of  removing  trees  or  timber  there- 
from, which  have  been  felled  in  pursuance 
of  a  contract  of  sale,  cannot  be  recalled. 
So  far  as  it  has  been  executed,  the  license  is 
irrevocable.  By  virtue  of  the  contract, 
and  with  the  express  or  implied  consent  of 
the  owner  of  the  soil,  the  vendee  has  been 
induced  to  expend  his  money  and  serv- 
ices. The  trees,  so  far  as  they  have  been 
severed  from  the  freehold,  have  been  con- 
verted into  personal  property,  and  vested 
in  the  vendee.  A.  revocation  of  the  license 
would,  to  the  extent  to  which  it  had  been 
executed,  oi)erate  as  a  fraud  on  the  ven- 
dee, and  deprive  him  of  i^ropertj'  to  which 
he  had  become  legally  entitled.  Besides, 
the  owner  of  the  land  cannot,  by  a  subse- 
quent revocation  of  his  license,  render 
that  unlawful  which,  with  all  its  incidents 
and  necessary  consequences,  was  lawful 
at  the  time  it  was  done,  by  virtue  of  his 
own  authority  and  consent.  The  true 
distinction  between  an  executory  verbal 
license  to  enter  on  land  under  a  contract 
for  the  sale  of  timber  or  trees  growing 
thereon,  and  a  similar  license  executed, 
seems  to  he  this:  The  former  confers  no 
vested  interest  or  property,  no  money  or 
labor  is  expended  on  the  faith  of  it,  and  no 
right  or  title  is  impaired  or  lost  by  its  rev- 
ocation. If  the  party  to  whom  it  is 
granted  is  injured  by  its  withdrawal,  his 
remedy  is  by  an  action  against  the  licens- 
or for  a  breach  of  the  cc^ntract.  It  cannot 
be  held  to  extend  further,  so  as   to   confer 


TRESPASS  TO  LAND. 


159 


a  right  to  use  the  land  of  another  without 
his  consent,  because  it  would  thus  confer, 
ex  propria  vigore,  an  interest  in  land, 
which  cannot  be  created  except  by  a  writ- 
ing. But  such  a  license  executed,  to  the 
extent  to  which  it  has  been  acted  on,  has 
operated  to  induce  the  vendee  to  expend 
monej'  and  services  on  the  property,  and 
thereby  to  convert  it  into  personal  chat- 
tels which  have  become  vested  in  him. 
The  revocation  of  the  license  in  such  case 
would  deprive  the  vendee  of  his  property. 
It  has  therefore  been  held  that  such  a 
license,  while  it  is  executory,  may  be 
countermanded,  but  that  when  executed 
it  becomes  irrevocable.  Cook  v.  Stearns. 
11  Mass.  533;  Cheever  v.  Pearson,  16 
Pick.  273;  Ruggles  v.  Lesure,  24  Pick.  190; 


Ciaflin  V,  Carpenter,  4  Mete.  (Mass.)  580; 
Nettleton  v.  Sikes,  8  Meto.  (Mass.)  34. 

Applying  these  principles  to  the  case  be- 
fore us,  it  is  clear  that  the  defendant  could 
not  justify  the  acts  of  trespass  charged  in 
the  declaration.  Before  his  entry  on  the 
land  for  the  purpose  of  cutting  trees,  the 
plaintiff  revoked  the  license  which  he  had 
given  by  the  verbal  contract  of  sale  under 
which  the  defendant  claimed  to  act.  So 
far  as  the  license  was  executory,  it  was 
revocable,  and  the  entrj-  of  the  defendant 
after  its  revocation  was  unlawful.  The 
view  which  we  have  taken  of  the  case 
seeujs  to  render  a  decision  of  the  other 
questions  raised  by  the  exceptions  unnec- 
essary. 

Exceptions  sustained. 


(See,  also,  Blaisdell  v.  Railroad  Co.,  51  N.  H.  485;  Babcock  v.  Utter,  1  Abb.  Dec.  27;  Fargis  v. 
WaltOD,  107  N,  Y.  39s,  14  N.  E.  Rep.  303;  Lockhart  v.  Geir,  54  Wis.  133,  11  N.  W.  Rep.  254;  Johnson  v. 
Skillman,  29  Minn.  95,  12  N.  W.  Rep.  149;  Pursell  v.  Stover,  110  Pa.  St.  43,  20  AtL  Rep.  403;  Wood  V. 
Leadbitter,  13  Mees.  &  W.  838.) 


(113  Mass.  876.) 

Proctor  v.  Adams  et  r1. 

(Supreme  Judicial  Court  of  Massachusetts. 
Nov.  Term,  1873.) 

Trespass  to  LiAxd — Extrt  to  Save  Property. 

The  entry  upon  the  land  of  another,  and  remov- 
ing a  boat  wrecked  thereon,  the  property  of  third 
persons,  is  not  a  trespass,  if  the  object  was  to 
prevent  the  loss  or  destruction  of  the  boat  by  the 
elements,  and  restore  it  to  the  owner,  and  not  to 
remove  it  under  a  claim  of  ownership. 

On  report  from  superior  court. 

Action  of  tort  in  the  nature  of  trespass 
quare  clnusum  for  entering  plaintiff's  close 
and  carrying  away  a  boat.  The  boat 
was  a  wreck  cast  upon  plaintiff's  beach 
between  high  and  low  water  mark,  found 
by  defendants  after  a  severe  storm.  Thej' 
drew  it  up  to  high-water  mark,  but,  not 
thinking  it  safe,  subsequently  took  it 
away.  They  advertised  it,  and  it  was 
claimed  by  the  owners,  who  paid  them  for 
their  services  and  expenses,  and  took  pos- 
session of  it.  The  court  ruled  that  these 
facts  did  not  constitute  a  defense,  and,  de- 
fendants refusing  to  go  to  the  jury  on  the 
instructions  proposed,  the  judge  reported 
the  case  to  the  supreme  court. 

E.  F.  Stone,  for  defendants.  S.  B.  Ives, 
Jr.,  for  plaintiff. 

Gray,  C.  J.  The  boat,  having  been  cast 
ashore  by  the  sea,  was  a  wreck,  in  the 
strictest  legal  sense.  Rl.  Comm.  106; 
Chase  V.  Corcoran,  106  Mass.  2S6,  2X8.  Nei- 
ther the  finders  of  the  boat,  nor  the  own- 
ers of  the  beach,  nor  the  commonwealtn, 
had  any  title  to  the  boat  as  against  its 
former  owner.  Body  of  Liberties,  art.  90; 
Anc.  Chart.  211 ;  2  Mass.  Col.  Rec.  143;  St. 
1814,  c.  170;  Rev.  JSt.  c.  57;  Gen.  St.  c.  81 ;  3 
Dane.  Abr.  134, 136,  138.  144 ;  2  Kent,  Comm. 
322,  359.  But  the  owner  of  the  land  on 
which    the   boat  was  cast  was  under  no 


duty  to  save  it  for  him.  Sutton  v.  Buck, 
2  Taunt.  302,  312. 

If  the  boat,  being  upon  the  land  betAveen 
high  and  low  water  mark  owned  or  oc- 
cupied by  the  plaintiff,  was  taken  by  the 
defendants,  claiming  it  as  their  own, 
when  it  was  not,  the  plaintiff  had  a  suffi- 
cient right  of  possession  to  maintain  an 
action  against  them.  Barker  v.  Bates,  13 
Pick.  255;  Dunwich  v.  Sterry,  1  Barn.  & 
Adol.  831.  But  if,  as  the  evidence  offered 
by  them  tended  to  show,  the  boat  was  in 
danser  of  being  carried  off  by  the  sea,  and 
they,  before  the  j)laintiff  had  taken  posses- 
sion of  it,  removed  it  for  the  purpose  of 
saving  and  i-estoring  it  to  its  lawful  own- 
er, they  were  not  trespassers.  In  such  a 
case,  though  they  had  no  permission  from 
the  plaintiff  or  an^'  other  person,  they  had 
an  implied  license  by  law  to  enter  on  the 
beach  to  save  the  jjroperty.  It  is  a  very 
ancient  rule  of  the  common  law  that  an 
entry  upon  land  to  save  goods  which  are 
in  jeopardy  of  being  lost  or  destroyed  by 
water,  fire,  or  any  like  danger,  is  not  a 
trespass.  21  Hen.  VII.  27,  28,  pi.  5;  Brooke, 
Abr.  "Trespass,"  213;  Vin.  Abr.  "Tres- 
pass," (H,  a,  4,)  pi.  24  ad  fin. ;  Id.  (K,  a,) 
pi.  3.  In  Dunwich  v.  Sterry,  1  Barn.  & 
Adol.  831,  a  case  very  like  this,  Mr.  .lustice 
Parke  (afterwards  Baron  Parkr  and  Lord 
Wensleydale)  left  it  to  the  jury  to  say 
whether  the  defendant  took  the  property 
for  the  benefit  of  the  owners,  or  under  a 
claim  of  his  own,  and  to  put  the  plaintiffs 
to  a  proof  of  their  title.  In  Barker  v. 
Bates,  13  Pick.  255,  upon  which  the  plain- 
tiff mainly  relies,  the  only  right  claimed 
by  the  defendants  was  as  finders  of  the 
property  and  for  their  own  benefit.  The 
defendants  are  therefore  entitled  to  a  new 
trial.  As  the  answer  was  not  objected  to, 
and  the  declaration  may  be  amended  in 
the  court  below,  we  iiave  not  considered 
the  form  of  the  pleadings. 

New  trial  ordered. 


(See,  also.  Print  Works  v.  Lawrence,  23  N.  J.  Law.  9,  590;  New  York  v.  Lord,  IS  Wend.  136.) 


IGO 


LAW  OF  TORTS. 


(7  Cush.  403.) 

Campbell  v.  Race. 

(Supreme  Judicial  Court  of  Massachusetts. 
September  Term,  1851.) 

Trespass  to  Laxd — Necessity— Obstructions  to 
Highway. 
Where  a  highway  becomes  obstructed  and  im- 
passable from  temporary  causes,  a  traveler  has 
the  right  to  go  upon  adjoining  lands  and  so  pass 
by  without  being  guilty  of  trespass. 

ExceptioQS  from  court  of  common  pleas. 

Action  of  trespass  to  land.  Defendant 
justified  going  upon  plaintiff's  lands  under 
a  right  of  way  of  neces.sity  resulting  from 
the  impassable  stateofthe  adjoining  high- 
way by  snow-drifts.  The  court  ruled 
that  such  fact  constituted  no  defense.  A 
verdict  was  returned  for  plaintiff.  Defend- 
ant alleged  exceptions. 

W.  Porter  and  J.  C.  Wolcott,  for  defend- 
ant.    I.  Sumner,  for  plaintiff. 

BiGELOW,  J.  It  is  not  controverted  by 
the  counsel  for  the  plaintiff  that  the  rule 
of  law  is  well  settled  in  England  that, 
where  a  highway  becomes  obstructed  and 
impassable  from  temporary  causes,  a 
traveler  has  a  right  to  go  extra  viam 
upon  adjoining  lands,  without  being  guil- 
ty of  trespass.  The  rule  is  so  laid  down 
in  the  elementary  books,  (2  Bl.  Comm.  36; 
Woolr.  Ways,  50,  51;  3  Cruise,  Dig.  89; 
Wellb.  Ways,  38;)  and  it  is  fully  supported 
bv  the  adjudged  cases,  (Henn's  Case,  W. 
Jones,  296;  Osborne  v.  Sture,  3  Salk.  182; 
Pomfret  v.  Ricroft,  1  Saund.  323,  note 
3;  Absor  v.  French,  2  Show.  28;  Young  v. 
,  1  Ld.  Raym.  725;  Taylor  v  White- 
head. 2  Doug.  745;  BuUard  v.  Harrison,  4 
Maule&S.  387,393.) 

Such  being  the  admitted  rule  of  law,  as 
settled  by  the  English  authorities,  it  was 
urged  in  behalf  of  the  plaintiff,  in  the  pres- 
ent case,  that  it  had  never  been  recognized 
or  sustained  by  American  authors  or  cases. 
But  we  do  not  find  such  to  be  the  fact. 
On  the  contrary,  Mr.  Dane,  whose  great 
learning  and  familiar  acquaintance  with 
the  principles  of  common  law,  and  their 
practical  application  at  an  earl^'  period 
in  this  commonwealth,  entitle  his  opinion 
to  very  great  weight,  adopts  the  rule,  as 
declared  in  the  leading  case  of  Taylor  v. 
WMiitehead,  ubi  supra,  which  he  says  "is 
the  latest  on  the  point,  and  settles  the 
law."  3  Dane,  Abr.  258.  And  so  Chancel- 
lor Kent  states  the  rule.  3  Kent,  Comm.  324. 
We  are  not  aware  of  any  case  in  which 
the  question  has  been  distinctly  raised 
and  adjudicated  in  this  country,  but  tnere 
are  several  decisions  in  New  York  in  which 
the  rule  has  been  incidentally  recognized 
and  treated  as  well-settled  law.  Holmes 
v.  Seely,  19  Wend.  507;  Williams  v.  Saf- 
ford,  7  Barb.  309;  Newkirk  v  Sabler,  9 
Barb.  652,  These  authorities  would  seem 
to  be  quite  sufficient  to  justify  us  in  the 
recognition  of  the  rule.  But  the  rule  itself 
is  founded  on  the  established  principles  of 
the  common  law,  and  is  in  accordance 
with  the  fixed  and  uniform  usage  of  the 
community.  Indeed,  one  of  the  strongest 
arguments  in  support  of  it  is  that  it  has 
always  been  practiced  upon  and  ac- 
quiesced in,  without  objection,  throughout 
the  New  England  states.  This  accounts 
satisfactorily  for  the  absence  of  any  adju- 


dication upon  the  question  in  our  courts, 
and  is  a  sufficient  answer  to  the  objection 
upon  this  ground  which  was  urged  upon 
us  by  the  learned  counsel  for  the  plaintiff. 
W'hen  a  right  has  long  been  claimed  and 
exercised  without  denial  or  objection,  a 
strong  presumption  is  raised  that  the 
right  is  well  founded. 

The  plaintiff's  counsel  is  under  a  misap- 
prehension in  supposing  that  the  authori- 
ties in  support  of  the  rule  rest  upon  any 
peculiar  or  exceptional  principle  of  law. 
They  are  based  upon  the  familiar  and  well- 
settled  doctrine  that  to  justify  or  excuse 
an  alleged  trespass  inevitable  necessity  or 
accident  must  be  shown.  If  a  traveler  in 
a  highway,  by  unexpected  and  unforeseen 
occurrences, such  as  a  sudden  tiood,  heavy 
drifts  of  snow,  or  the  falling  of  a  tree,  is 
shut  out  from  the  traveled  paths,  so  that 
he  cannot  reach  his  destination  without 
passing  upon  adjacent  lands,  he  is  certain- 
ly under  a  necessity  to  do  so.  It  is  essen- 
tial to  the  act  to  be  done,  without  which 
it  cannot  be  accomplished.  Serious  incon- 
veniences, to  say  the  least,  would  follow, 
especiallj'  in  a  climate  like  our  own,  if 
this  right  were  denied  to  those  who  have 
occasion  to  pass  over  the  public  waj's. 
Not  only  would  intercourse  and  business 
be  sometimes  suspended,  but  life  itself 
would  be  endangered.  In  hilly  and  moun- 
tainous regions,  as  well  as  in  exposed 
places  near  the  sea-coast,  severe  and  unfore- 
seen storms  not  unfrequently  overtake  the 
traveler,  and  render  highways  suddenly 
impassable,  so  that  to  advance  or  retreat 
by  the  ordinary  path  is  alike  impossible. 
In  such  cases  the  only  escape  is  by  turning 
out  of  the  usually  traveled  way,  and  seek- 
ing an  outlet  over  the  fields  adjoining  the 
highway.  If  a  necessity  is  not  created, 
under  such  circumstances, sufficient  to  jus- 
tify or  excuse  a  traveler,  it  is  difficult  to 
imagine  a  case  which  would  come  within 
the  admitted  rule  of  law.  To  hold  a  par- 
ty guilty  of  a  wrongful  invasion  of  an- 
other's rights  for  passing  over  land  adja- 
cent to  the  highway, under  the  pressure  of 
such  a  iiecessit3%  would  be  pushing  indi- 
vidual rights  of  property  to  an  unreason- 
able extent,  and  giving  them  a  protection 
beyond  that  whicii  finds  a  sanction  in  the 
rules  of  law.  Sucii  a  temporary  and  un- 
avoidable use  o  private  property  must  be 
regarded  as  one  of  those  incidental  bur- 
dens to  which  all  property  in  a  civilized 
community  is  subj'ect.  In  fact,  the  rule  is 
sometimes  justified  upon  the  ground  of 
public  convenience  and  necessity.  High- 
ways being  established  for  public  service 
and  for  the  use  and  benefit  of  the  wMiole 
community,  a  due  regard  for  the  welfare 
of  all  requires  that,  when  temporarily 
obstructed,  the  right  of  travel  should  not 
be  interrupted.  In  the  words  of  Lord 
Mansfield,  "it  is  for  the  general  good 
that  people  should  be  entitled  to  pass  in 
another  line."  It  is  a  maxim  of  the  com- 
mon law  that,  where  public  convenience 
and  necessity  come  in  conflict  with  i)rivate 
right,  the  latter  must  jield  to  the  former. 
A  person  traveling  on  a  highway  is  in  the 
exercise  of  a  public,  and  not  a  private, 
right.  If  he  is  compelled,  bj^  impassable 
obstructions,  to  leave  the  way,  and  go 
upon  adjoining  lands,  he  is  still  in  the  ex- 


TREbPAtjS  TO  LAND. 


161 


.»rcise  of  the  Hiiim'  riglit.  Tlie  rule  does 
not.  therefore,  violate  the  principle  that 
individual  eon venieuce  must  alwaj's  be 
held  subordinate  to  private  rights,  but 
clearly  falls    within    that    maxim    which 


of  which  the  towns  have  had  no  notice. 
Besides,  the  statute  liahilitj'  of  towns 
does  not  ex  tend  to  damages  such  as  would 
ordinarily  arise  from  a  total  obstruction 
of  a  highway.  l)einj?  esprtssly  confined  to 


makes   public   convenience  and    necessity  i  cases   of  bodily  injuries   and  daniai;es   to 


paramount. 

It  was  urffed  in  argument  that  theeffect 
of  establishins:  this  rule  of  law  would  be 
to  appropricite  private  property*  to  public 
use  without  jn'ovidinj?  any  means  of  com- 
pensation to  the  owner.  If  such  an  acci- 
dental, occasional,  and  temporary  use  of 
land  can  be  reji'arded  as  an  appropriation 


property.  St.  Is50,  c.  5;  Cannins^  v.  Will- 
iamstown,  1  Cush.  451;  Harwood  v.  Low- 
ell. 4  Cush.310;  Brailey  V.  Southborough, 
6  Cush.  141. 

From  what  has  already  been  said,  tht 
limitations  and  resti'ictions  of  the  right  to 
go  upon  adjacent  lands  in  case  of  obstruc- 
tions  in  th'^   highway   can   be  readily  in- 


of  private  property  to  public  use,  entitling  j  ferred.  Having  its  origin  in  necessity,  it 
the  owner  to  coinpensatiijn,  which  may  i  must  be  limited  by  that  necessity,— ces- 
well  be  doubted,  still  the  {\ec'\s'we  ixuHwer  ,  santerafionercssatipsHlex.  Sucharightis 
to  this  objection  is  quite  obvious.  The  [  not  to  beexercised  from  convenience  mere- 
right  to  go  extra  yi;iiii,  in  case  of  tempo- 1  ly,  nor  when  by  the  exercise  of  duecare,  aft- 
rary  and  impassable  obstructions,  being  er  notice  of  obstructions,  other  ways  may 
one  of  the  legal  incidents   or  consequences    be  selected,  and  the  obstructions  avoided. 


which  attach  ti)  a  highway  through 
private  property,  it  must  be  assumed  that 
the  right  to  the  use  of  land  adjoining  the 
road  was  taken  into  consideration,  and 
proper  allowance  made  tiierefor,  when  the 
land  Avas  originally  appropriated  for  the 
high  way.  and  that  the  damages  were  then 
estimated  and  fixed  for  the  private  injury' 
which  might  thereby  be  occasioned. 

It  was  also  sugaested  that  the  statutes 
of  the  commonwealth  imposing  the  duty 
on  towns  to  keep  public  ways  in  repair, 
and  rendering  them  liable  for  damages  oc- 
casioned by  defects  therein,  furnish  ample 
remedies  in  cases  of  obstructions,  and  do 
away  with  the  necessity  of  establishing 
the  rule  of  the  common  law  in  this  com- 
monwealth, which  gives  the  right   in  such 


But   it  is  to  be  confined   to  those  cases  of 
inevitable  necessity  or   unavoidable  acci- 
dent,   arising    from    sudden    and     recent 
causes,  which  have  occasioned  temporary 
and  impassable   obstiuctions  in  the  high- 
way.    What  shall  constitute  such  inevita- 
I  ble  necessity  or  unavoidable  accident  must 
:  depend  upon  the  various  circumstances  at- 
i  tending   each   particular  case.      The  nat- 
j  ure  of   the   obstruction   in   the  road,   the 
length  of  time  during  v\hich  it  has  existed, 
the   vicinity-   or   distance   of   other  public 
ways,  the  exigencies   of  the  traveler,  are 
some   of  the  many  considerations  which 
would  enter  into    the  inquiry,  and   upon 
which   it   is  the  exclusive  province  of  the 
jury  topass,  in  ord^r  to  determine  whether 
any  necessity  reallj-  existed    which   would 


cases  to   pass  over  adjacent   lands.     t5ut   justify  or  excuse  the  traveler      In  the  case 
this  is  not   so.     Towns  are  not  liable  foi"4  at   bar  this   question    was   wholly    with- 


da mages  in  those  cases  to  which  this  rule 
of  the  c(Mnmon  law  would  most  frequently 
De  applicable. — of  obstructions  occasioned 
by  sudden  and  recent  causes,  which  have 
not  existed   for  the  space  of  24  hours,  and 


drawn  from  the  consideration  of  the  jury 
by  the  ruling  of  the  court.  It  will  there- 
fore be  necessary  to  send  the  case  to  a 
new  trial  in  the  court  of  common  pleas. 
Exceptions  sustained. 


(See,  also,  Moray  v.  Fitzgerald,  56  Vt.  4S~;  Carey  v.  Rae,  5S  Cal.  159.) 


(5  Johns.  353.) 

Williams  v.  Spencer. 

(Supreme  Court  of  New  York.    Feb.  Term,  ISIO. ) 

Trespass  to  Laxd  —  Breaking  Open  Door  to 

Serve  Process. 
The  owner  of  a  house,  renting  the  same,  re- 
served an  inner  room,  which  he  occupied.  A 
constable,  having  a  warrant  against  him,  entered 
by  the  outer  door,  which  was  open,  and  broke 
open  the  door  of  such  inner  room  and  arrested  him. 
Held,  that  the  constable  was  not  a  trespasser. 

In  error,  on  certiorari. 

Action  of  trespass  quare  clavsum  fregit 
brought  by  Spencer  against  Williams.  It 
apijeared  at  the  trial  before  a  justice  of 
the  peace  that  Spencer  let  out  jjart  of  his 
house,   and   reserved   an   inner  room    for 

(See,  also,  Hubbard  v.  Mace,  17  Johns.  127;  Hager  v.  Danforth,  20  Barb.  16;  Com.  v.  Tobin,  lOS 
M  ss.  426.) 

CHASE — 11 


himself,  which  he  occupied;  that  Will- 
iams, who  was  a  constable,  having  a  war- 
rant against  Spencer,  the  outer  door  of 
the  house  being  open,  broke  open  the  door 
of  the  inner  room,  and  arrested  him.  The 
justicegave  judgment  for  plaintiff,  and  de- 
fendant brought  up  the  case  by  certiorari 
and  writ  of  error. 

Mr.  Tomliijson,  for  plaintiff  in  error.  Mr. 
Foot,  for  defendant  in  error. 

Per  Curiam.  There  was  no  i)rotection, 
in  this  case,  to  rhe  door  of  the  inner 
room,  though  occupied  separately  by  the 
defendant  in  error.  The  constable  had  a 
right,  therefore,  to  break  the  door,  l.ee  v. 
Gansel,  Cowp.  I. 

The  judgment  must  be  reversed. 


162 


LAW  OF  TORTS. 


(10  Q.  B.  Div.  17.) 

TiLi.ETT  V.  Ward. 

(Court  of  Queen's  Bench.    Nov.  27, 1883.) 

Trespass  to  L.\.nd — Cattle  Escaping  fkom  High- 
way. 
Defendant's  ox,  while  being  driven  along  the 
highway  in  a  town,  without  any  negligence  on 
defendant's  part,  escaped  from  him,  and  entered 
plaintiff's  adjoining  premises  through  an  open 
door.  Held,  that  an  action  would  not  lie  for 
plaintiff's  damages. 

Appeal  by  special  case  from  the  decision 
of  the  judge  of  the  county  court  of  Lincoln- 
shire, holden  at  Stamford. 

Action  for  injuries  t(j  goods  in  plaintiff's 
shop,  caused  by  defendant's  ox,  which 
came  through  the  ojjen  doorway  after 
escaping  from  defendant's  servants,  who 
were  driving  it  along  the  public  street  in 
Stamford  in  the  usual  and  customary 
manner.  There  was  no  evidence  of  negli- 
gence of  defendant's  servants,  or  that  the 
ox  was  vicious,  or  that  there  was  any- 
thing exceptional  in  its  temper  and  cnar- 
acter.  The  county  court  judge  gave  a 
verdict  for  the  amount  claimed,  giving  the 
defendant  leave  to  appeal. 

Moon  &  GrabHin,  for  defendant.  Mr. 
Sills,  for  plaintiff. 

Coleridge,  C.  J.  In  this  action  the 
county  court  judge  has  found  as  a  fact 
that  there  was  no  negligence  on  the  part 
of  the  drivers  of  the  ox,  or,  at  all  events, 
he  has  not  found  that  there  was  negli- 
gence; and,  as  it  lies  on  the  plaintiff  to 
make  out  his  case,  the  charge  of  negligence, 
so  far  as  it  has  any  bearing  on  the  matter, 
must  be  taken  to  have  failed. 


the  owner  of  cattle  and  sheep  is  bound  to 
keep  them  from  trespassing  on  his  neigh- 
bor's land,  and,  if  they  so  trespass,  an  ac- 
tion for  damages  may  be  brought  against 
him,  irrespective  ot  whether  the  trespass 
was  or  was  not  the  result  of  his  negli- 
gence. It  is  also  tolerably  clear  that 
where  both  parties  are  upon  the  higiiway, 
where  each  of  them  has  a  right  to  be,  and 
one  of  them  is  injured  by  the  trespass  of 
an  animal  belonging  to  the  other,  he  must, 
in  order  to  maintain  his  action,  show  that 
the  tresjiass  was  owing  to  the  negligetice 
of  the  other  or  of  his  servant.  It  is  also 
clear  that,  where  a  man  is  injured  by  a 
fierce  or  vicious  animal  behmging  to 
another,  prima  facie  no  action  can  be 
brought  without  proof  that  the  owner  of 
the  animal  knew  of  its  raischievcnis  tend- 
encies. In  the  present  case,  the  trespass, 
if  there  was  any,  was  committed  off  the 
high  way  upon  tile  plaintiff's  close,  which 
immediately  adjoined  the  highway,  by  an 
animal  belonging  to  the  defendant,  which 
was   being  driven   on  the  highway.     No 


negligence  is  proved,  and  it  would  seem  to 
follow,  from  the  law  which  I  have  pre- 
viously stated,  that  the  defendant  is  not 
responsible.  Wp  find  it  established,  as  an 
exception  upon  the  general  law  of  tres- 
pass, that,  where  cattle  trespass  upon  un- 
feuced  land  immediately  adjoining  a  high- 
way, the  owner  of  the  land  must  bear  the 
loss.  This  is  shown  by  the  judgment  of 
Bkamweli.,  B.,  in  Goodwyn  v.Cheveley,28 
Law  J.  Exch.  298.  That  learned  judge  goes 
into  the  question  whether  a  reastmable 
time  had  or  had  not  elapsed  for  the  re- 
moval of  cattle  who  had  trespassed  under 
similar  circumstances,  and  this  question 
wotild  not  have  arisen  if  a  mere  momen- 
tary trespass  had  been  by  itself  actiona- 
ble. There  is  also  the  statement  of  Blahk- 
EURx,  J.,  in  Fletcher  v.  Rylands.  L.  R.  1 
Exch.  265,  that  persons  who  have  property 
adjacent  to  a  highway  may  be  taken  to 
hold  it  subject  to  the  risk  of  injury  from 
inevitable  risk.  I  could  not,  therefore,  if 
I  were  disposed,  question  law  laid  down 
by  such  eminent  authorities;  but  1  quite 
concur  in  their  view,  and  I  see  no  distinc- 
tion for  this  purpose  between  a  field  in  the 
country  and  a  street  in  a  market  town. 
The  accident  to  the  plaintiff  was  one  of 
the  necessary  and  inevitable  risks  which 
arise  from  driving  cattle  in  the  streets  in 
or  out  of  town.  No  cause  of  action  is 
shown,  and  the  judgment  of  the  county 
court  judge  must  be  reversed. 

Stephen,  J.  I  am  of  the  same  opinion. 
As  I  understand  the  law,  when  a  man  has 
placed  his  cattle  in  a  field,  it  is  his  duty  to 
keep  them  from  trespassing  on  the  land 
of  his   neighbors;  but  while   he  is   driving 


Now,  it  is  clear,  as   a  general   rule,  that*' them  ujjon  a  highway  he  is  not  responsi 


ble,  without  proof  of  negligence  on  his 
part,  for  any  injury  they  may  do  upon  the 
highway,  for  they  cannot  then  be  said  to 
be  trespassing.  The  case  of  Goodwyn  v. 
Cheveley,  28  Law  J.  Exch.  298,  seems  to  me 
to  establish  a  further  exception,  that  the 
owner  of  the  cattle  is  not  responsible  with- 
out negligence  when  the  injury  is  done  to 
property  adjoining  the  highway, — an  ex- 
ception which  is  absoltitely  necessary  for 
the  conduct  of  the  common  affairs  of  life. 
We  have  been  invited  to  limit  this  excep- 
tion to  the  case  of  hiijh  roads  adjoining 
fields  in  the  country,  but  I  am  very  unwill- 
ing to  multiply  exceptions,  and  I  can  see 
no  solid  distinction  between  the  case  of  an 
animal  straying  into  a  field  wMi'ich  is  un- 
feneed  or  into  an  open  shop  in  a  town.  I 
think  the  rule  to  be  gathered  from  Good- 
wyn V.  Cheveley  a  very  reasonable  one,  for 
otherwise  I  cannot  see  how  we  could  limit 
the  liability  of  the  owner  of  cattle  for  any 
sort  of  injury  which  could  be  traced  to 
them. 
Judgment  for  defendant. 


(See,  also,  Hartford  v.  Brady,  114  Mass.  466 ;  Cool  v.  Crommet,  13  Me.  250 ;  Bush  v.  Brainard,  1 
Cow.  78,  and  note.) 


TRESPASS  TO  LAND. 


1^3 


(37  N.  H.  331.) 

Lawrence  v.  Combs. 

(Supreme  Judicial  Court  of  New  Hampshire. 
July  Term,  185S.) 

Tkespass  to  Land  — Adjoining  Tenants  — Obli- 
GATioN  TO  Fence. 
Trespass  will  not  lie  by  the  tenant  of  a  close 
against  an  adjoining  proprietor  for  damage  done 
uy  cattle  of  a  third  person,  which,  straying  upon 
the  highwaj',  enter  defeudant's  lands,  and  from 
there  pass  upon  plaintiff's  land,  through  a  defect 
in  that  portion  of  tne  division  fence  which  de- 
fendant was  by  law  bound  to  keep  in  repair. 
Rev.  St.  N.  H.  c.  136   §  1. 

On  report  of  referee. 

Action  on  the  case  for  negrligence.  It 
appeared  on  trial  before  a  referee  thatcat- 
tle  of  a  third  person  straying  on  the  high- 
wa^-  entered  upon  defendant's  land,  and 
therefrom  passed  upon  plaintiff's  adjoin- 
ing? land  throngrh  a  defective  fence  at  a 
jioint  where  defendant  was  by  law  bound 
to  build  and  keep  in  repair  the  division 
fence.  The  referee  reported  the  facts  for 
the  jndsment  of  the  court. 

Wheeler  &  Faulkner,  for  plaintiff.  Mr. 
Laue,  for  defendant. 

EASTMA^,  J.  At  common  law,  a  tenant 
cr  owner  was  not  obliged  to  fence  against 
an  adjoining  owner  or  occupier,  except  by 
prescription,  but  he  was  to  keep  his  cat- 
tle on  his  own  land  at  his  peril;  and,  if 
they  escaped,  they  might  be  taken  on 
whatever  land  they  were  found  damage 
feasant,  or  the  owner  was  liable  to  an 
action  of  trespass  by  the  party  injured. 
And  where  there  was  no  prescription,  but 
the  tenant  had  made  an  agreement  to 
fence,  he  could  not  be  compelled  to  carrj' 
out  his  agreement  and  make  the  fence; 
and  the  party  injured  by  the  breach  of  the 
agreement  had  no  remedj'  but  by  an  ac- 
tion on  the  agreement.  Nowel  v.  Smith, 
Cro.  Eliz.  709;  Rust  v.  Low,  6  Mass.  94; 
Averv  v.  Maxwell,  4  N.  H..36;  Deyo  v. 
Stewart,  4  Denio,  101;  3  Kent.  Comm.  43S; 
Dean  v.  Railroad,  2  Fost.  (N.  H.)  317; 
Glidden  v.  Towie,  11  Fost.  (X.  H.)  ICS. 

In  case  of  a  prescription  to  fence,  the 
tenant  could  be  compelled  to  fence  b^-  the 
writ  of  curia  chtudeiida,  sued  out  by  the 
tenant  of  the  adjoining  close,  who  could 
also  recover  damages  by  that  writ. 
Fitzh.  Nat.  Brev.  "Curia  Claudenda,"  297; 
Rust  V.  Low.  6  Mass.  94;  Glidden  v.Towle, 
11  Fost.  (N.  H.)  168.  But.  by  statute,  the 
owners  of  adjoining  lands,  under  improve- 
n)ent.  are  required  to  make  and  rej^air  the 
partition  fences  between  them.  Rev.  St. 
c.  13(i,  §  1.  And  after  the  fence  has  been 
divided,  the  owner  of  a  close  can  sustain 
no  action  for  damages  done  bj'  horses  or 
cattle  breaking  into  his  close,  through 
defects  in  the  fence  which  he  was  bound  to 
make  and  repair,  if  they  were  rightfully 
on  the  adjoining  land.  Averv  v.  Maxwell, 
4N.  H.  30;  York  v.  Davis.  11  N.  H.  241; 
Page  V.  Olcott,  13  N.  H.  399.  Where  there 
are  adjoining  closes,  with  an  undivided 
partition  fence,  which  each  ownerisbound 
to  keep  in  repair,  each  is  required  to  keep 
his  cattle  on  his  own  land  at  his  peril. 
Tewksburv  v.  Bucklin,  7  N.  H.  518;  Avery 
V.   Maxwell,   4  N.    H.   36;    Thayer  v.   Ar- 


nold. 4  Mete.  (Mass.)  589;  Little  v.  Lath- 
rop,  5  Greenl.  .3.56. 

At  Common  law  the  tenant  of  a  close 
who  was  ol)liged  by  prescription  to  fence 
was  not  required  to  do  It  against  any  cat- 
tle except  those  which  were  rightfully  in 
the  adjoining  close.  Salkwell  v.  Mil- 
warde,  26  Hen.  VI.  c.  23;  10  Edw.  IV.  c.  7; 
Fitzh.  Nat.  Brev.  "Curia  Claudenda,"  1,  2; 
Rust  V.  Low,  6  Mass.  99,  100;  3  Kent, 
Comm.  438.  And  the  same  rule  has  been 
held  to  prevail  where  statutes  have  been 
adoi)ted  regulating  therightsand  duties  of 
adjoining  owners  in  regard  to  fences.  In 
Rust  V.  Low,  alreadj'  cited,  which  is  a 
leading  American  case  upon  the  question, 
the  point  was  distinctly  decided  that  the 
tenant  of  a  close  is  not  obliged  to  fence 
except  against  cattle  which  are  rightfully 
upon  the  adjoining  land.  In  Avery  v. 
MaxAvell,4  N.  H.  37,  Chief  Justice  Richard- 
son saj's  that  "it  is  well  settled  that  the 
owner  of  a  close  is  only  bound  to  fence 
against  creatures  which  are  rightfully  on 
the  adjoining  land."  And  in  Holladay  v. 
Marsh,  3  Wend.  147,  Chief  .Justice  Savage 
also  says  that  "it  is  certainly  well  settled 
that  a  man  is  not  obliged  to  fence  against 
any  cattle  but  such  as  may  be  rightfully 
upon  the  adjoining  close.  "  This  doctrine 
is  sustained  by  many  authorities,  among 
which  may  be  cited  Wells  v.  Howell,  19 
Johns.  385;  Stackpole  v.  Healy.  16  'Mass. 
38;  Lord  v.  Worm  word,  29  Me.  282;  Hurd 
V.  Railroad  Co.,  25  Vt.  122;  Dovaston  v. 
Pavne.  2  H.  Rl.  .527;  Cornwall  v.  Rail- 
road, S  Fost.  (N.  H.)  167. 

From  the  declaration  of  the  plaintiff,  it 
appears  that  he  and  the  defendant  were 
owners  of  adjoining  closes;  that  the  fence 
between  them  had  been  divided;  and 
that  the  defendant's  portion  of  the  fence 
was  out  of  repair.  Upon  this  state  of 
facts,  and  according  to  the  principles 
stated,  there  can  be  no  doubt  that  the  de- 
fendant would  be  liable,  had  the  cattle 
that  committed  the  trespass  upon  the 
plaintiff's  land  been  rightfully  in  the  close 
of  the  defendant,  for  they  went  into  the 
plaintiff's  close  over  that  part  of  the  fence 
which  the  defendant  was  bound  to  main- 
tain. But  the  cattle  that  committed  the 
trespass  were  not  the  property  of  the  de- 
fendant, nor  were  they  upon  liis  land  by 
his  permission ;  but  they  belonged  to 
third  persons,  and  strayed  from  the  high- 
way— where  they  do  not  appear  to  have 
been  for  any  legitimate  purpose— into  the 
defendant's  close,  and  thence  came  upon 
the  plaintiff's  land  and  did  the  damage. 
Both  the  plaintiff  and  defendant  could 
maintain  their  actions  against  the  own- 
ers of  the  cattle  for  the  trespasses  commit- 
ted ;  for,  not  l.eing  rightfully  in  the  high- 
way, it  is  immaterial  what  the  situation 
of  their  fences  were.  Thej'  were  not 
obliged  to  fence  against  wrong-doers. 
The  authorities  cited  settled  this  position. 

[The  ojiinion  concludes  with  an  exami- 
nation of  tiie  provisions  of  the  New  Hamp- 
shire statute  as  to  division  fences,  (Rev, 
St.  c.  136.)  which,  however,  it  is  held,  do 
not  change  the  result.] 

Our  conclusion  is  that  there  should  be. 

Judgment  on  the  report  for  the  defend- 
ant. 


(See,  also.  Railroad  Co.  v.  Munger,  .5  Denio,  255;  Thayer  v.  Arnold,  4  Mete.  (Mass.)  589;  Knox  v. 
Tucker,  45  Me.  373;  Scott  v.  Grover,  50  Vt.  499.) 


164 


LAW  OF  TORTS. 


NUISANCE. 


WHAT  CONSTITUTES  A  NUISANCE— PRESCRIPTIVE  RIGHT  TO  MAIN- 
TAIN A  NUISANCE— INJUNCTION  TO  RESTRAIN. 


(63  N.  Y.  56S.) 

Campbell  et  al.  v.  Seaman. 

(Court  of  Appeals  of  New  York.    Jan.  21, 1876. ) 

1.  Nuisance — What  Coxstitctes. 

The  unreasonable,  unwarrantable,  or  unlawful 
use  of  one's  own  property,  producing  material 
annoyance,  inconvenience,  discomfort,  or  hurt  to 
his  neighbor,  constitutes  a  nuisance. 

2.  Same — Brick-Burxixg. 

The  burning  of  brick  in  a  kiln,  which  produces 
noxious  gases,  injuring  another's  property,  is  a 
nuisance,  though  brick-burning  is  a  useful  and 
necessary  industry. 

3.  Injunction — When  Granted. 

The  writ  of  injunction  is  not  a  matter  of  grace, 
but  of  right,  in  a  proper  case,  and  will  be  grant- 
ed to  restrain  irreparable  injury,  whether  it  be 
to  the  enjoyment  of  the  necessities  or  the  lux- 
uries of  life. 

4.  Same. 

The  destruction  of  ornamental  and  useful  trees 
and  vines  by  the  vapors  and  gases  from  a  brick- 
kiln is  such  irreparable  injury  as  a  court  of 
equity  will  enjoin. 

5.  Nuisance — Prescriptive   Right  to  Maintain. 
A  person  cannot,  by  erecting  a  nuisance  upon 

his  land  adjoining  vacant  land  owned  by  another, 
control  or  lessen l:he  latter 's  use  of  the  land,  un- 
less he  can  acquire  such  right  by  prescription. 

6.  Same. 

Where  the    injury  to   shrubbery  on   plaintiff's 
premises  is  caused  by  the  burning   of  anthracite 
coal  in  a  brick-kiln  on  adjoining  premises  by  de 
fendant,  a  prescriptive  right  to  continue  the  nui 
sance  must  be  based  upon  20  years'  actual  use  of 
such  coal,  and  not  20  years'  use  of  the  kiln. 

Api^eal  from  supreme  court,  general 
term,  third  department. 

Action  by  Samuel  B.  Campbell  and  oth- 
ers against  Nathan  N.  Seaman  to  recover 
damagjes  from  an  alleged  nuisance  and  to 
resti'ain  the  continuance  tliereof.  The 
nuisance  consisted  in  the  burninp;  of  brick 
by  anthracite  coal  on  defendant's  prem- 
ises, which  killed  the  foliage,  trees,  and 
shrubbery  on  plaintiffs"  adjoining  prem- 
ises. The  referee  bj'  whom  the  case  was 
tried  found  for  plaintiffs,  and  the  general 
term  affirmed  the  judgment  entered  upon 
his  report.  From  the  judgment  of  the 
general  terra  defendant  appealed. 

Geo.  W.  Miller  and  W.  S.  Hevenor,  for 
appellant.   G.  P.  Jenks,  for  resptmdents. 

Earl,  J.  The  plaintiffs  owned  about  40 
acres  of  land,  situate  in  the  village  of 
Castleton,  on  the  east  bank  of  the  Hud- 
son river,  and  had  owned  it  since  about 
1849.  During  the  years  1S57,  1S5S,  and  1S59 
they  built  upon  it  an  expensive  dwelling- 
house;  and  during  those  years,  and  before 
and  since,  tiiey  improved  the  land  by 
grading  and  terracing,  building  roads  and 
walks  through  the  same,  and  jjlanting 
trees  and  shrubs,  both  ornamental  and 
useful.  The  defendant  had  for  some  years 
owned  adjoining  lands,  which  he  had 
used   as   a   brick-yard.    The  brick-yard  is 


southerly  of  plaintiffs'  dwelling-house 
about  1,320  feet,  and  southerly  of  their 
woods  about  567  feet.  In  burning  bricks 
defendant  had  made  use  of  anthracite 
coal.  During  the  burning  of  a  kiln  sul- 
phuric acid  gas  is  generated,  which  is  de- 
structive to  some  kinds  of  trees  and  vines. 
The  evidence  shows,  and  the  referee  found, 
that  gas  coming  from  defendant's  kilns 
had,  during  the  years  1SG9  and  1870,  killed 
the  foliage  on  plaintiffs'  white  and  yellow 
pines  and  Norway  spruce,  and  had,  after 
repeated  attacks,  killed  and  destroyed 
from  100  to  150  valuable  pine  and  spruce 
trees,  and  had  injured  their  grai)e-vines 
and  plum  trees,  and  he  estimated  plain- 
tiffs' damages  from  the  gas  during  those 
years  at  $500.  This  gas  did  not  continu- 
ally escape  during  the  burning  of  a  kiln, 
but  only  during  the  last  two  days,  and 
was  carried  into  and  over  plaintiffs'  land 
only  when  the  wind  was  from  the  south. 

It  is  a  general  rule  that  every  person 
may  exercise  exclusive  dominion  over  his 
own  property,  and  subject  it  to  such  uses 
as  will  best  subserve  his  private  interests. 
Generally,  no  other  person  can  say  how 
he  shall  use  or  what  he  shall  do  with  his 
propertj-.  But  this  general  right  of  prop- 
erty has  its  exceptions  and  qualifica- 
tions. Sic  utere  tiio  ut  alienvm  non  Isedas 
is  an  old  maxim  which  has  a  broad  appli- 
cation. It  does  not  mean  that  one  must 
never  use  his  own  so  as  to  do  any  injury 
to  his  neighbor  or  his  property-.  Such  a 
rule  could  not  be  enforced  in  civilized 
society.  Persons  living  in  organized 
communities  must  suffer  some  damage, 
annoyance,  and  inconvenience  from  each 
other.  For  these  they  are  compensated 
by  all  the  advantages  of  civilized  society. 
If  one  lives  in  the  citj',  he  must  expect  to 
suffer  the  dirt,  smoke,  noisome  odors, 
noise,  and  confusion  incident  to  city  life. 
As  Lord  .Tustice  James  beautifull3'  said, 
in  Salvin  v.  ('oal  Co.,  L.  R.  9  Ch.  App,  705: 
"If  some  picturesque  haven  opens  its 
arms  to  invite  the  commerce  of  the  world, 
it  is  not  for  this  court  to  forbid  the  em 
brace,  although  the  fruit  of  it  should  be 
the'  sights  and  sounds  and  smells  of  a 
common  seaport  and  ship-building  town, 
which  would  drive  the  dryads  and  their 
masters  from  their  ancient  solitudes."' 

But  every  person  is  bound  to  make  a 
reasonable  use  of  his  property,  so  as  to 
occasion  no  unnecessary  damage  or  an- 
noyance to  his  neighbor.  If  he  make  an 
unreasonable,  unwarrantable,  or  unlaw- 
ful use  of  it,  so  as  to  produce  material  an- 
noyance, inconvenience,  discomfort,  or 
hurt  to  his  neighbor,  he  will  be  guilty  of 
a  nuisan(;e  to  his  neiglibor,  and  the  law 
will  hold  him  responsible  for  the  conse- 
quent damage:  As  to  what  is  a  reasona- 
ble use  of  one's  own   property  cannot   bs- 


NUISANCE. 


165 


vlefined  by  any  certain  general  rules,  but 
must  depend  upon  the  circumstances  of 
eacl)  case.  A  use  of  property  in  one  locali- 
ty, and  under  some  circumstances,  may  ije 
lawful  and  reasonable,  which,  under  oth- 
er circumstances,  would  be  unlawful,  un- 
reasonable, and  a  nuisance.  To  consti- 
tute a  nuisance,  the  use  must  be  such  as 
to  produce  a  tangible  and  appreciable  in- 
jury to  neighboring  property,  or  such  as 
to  render  its  enjoyment  specially  uncom- 
fortable or  inconvenient. 

Within  the  rules  thus  referred  to.  that 
defendant's  bri<-k-burning  was  a  nuisance 
to  i)laintiffs  cannot  be  doubted.  Numer- 
ous cases  might  be  cited,  but  it  will  be 
sufficient  to  cite  mainly  those  where  the 
precise  question  was  involved  in  reference 
to  brick-burning. 

The  earliest  case  is  that  of  Duke  of  Graf- 
ton V.  Hilliard.  d<;cided  in  173G,not  report- 
ed, but  referred  to  in  Attorney  General  v. 
Cleaver,  IS  Ves.  211.  Chancellor  Eldox 
chere  says  that  the  court  held  in  that  case 
that  "the  manufacture  of  bricks,  though 
near  the  habitations  of  men,  if  carried  on 
for  the  purpose  of  making  habitations  for 
■♦"hem,  is  not  a  public  nuisance."  By  look- 
ing at  that  case,  as  found  in  a  note  to 
"Walter  v.  Selfe,  4  Eng.  Law  &  Eq.  IS,  it 
will  be  seen  that  no  such  decision  was 
made  in  that  case,  and  that  no  such  lan- 
guage was  used  therein.  A  temporary  in- 
junction had  been  granted  in  tlie  first  in- 
stance, restraining  brick-burning,  but  it 
was  dissolved  uptm  the  defendant's  show- 
ing that  it  would  really  produce  no  an- 
no.vance  or  iniury  to  the  plaintiff. 

In  Donald  v.  Humphrey,  14  F.  (Sc.) 
120G,  the  plaintiff  brought  an  action  to  re- 
strain brick-burning,  and  insisted  that  the 
business  was  per  se  a  nuisance,  and  should 
be  restrained  without  proof  of  actual  in- 
jur3\  but  the  court  held  that  the  business 
of  burning  brick  was  a  lawful  business, 
and  not  per  se  a  nuisance,  but  that  the 
question  as  to  whether  it  was  a  nuisance 
or  not  was  one  of  fact,  to  be  derer:nined 
by  the  circumstances  of  each  case,  and  re- 
fn.sed  an  injunction  without  proof  that 
the  businet^s  Avas  so  conducted  as  to  be  a 
■iuisance  to  the  plaintiff. 

In  the  case  of  Walter  v.  Selfe,  supra,  the 
delendants  were  enjoined  from  burning 
l)ricks  in  the  vicinity  of  the  plaintiffs' 
premises  so  as  to  occasion  damage  or  an- 
noyance to  the  plaintiffs,  or  injury  or 
damage  to  the  buildings  thereon  stand- 
ing, or  shrubberies  or  plantation,  named 
in  the  bill. 

In  Pollock  V.  Lester,  11  Hare,  266,  the  de- 
fendant was  making  preparations  to  burn 
bricks  near  a  lunatic  asylum  of  which 
plaintiff  was  proprietor,  and  plaintiff 
br(jught  his  bill  praying  an  injunction  to 
restrain  the  defendant,  alleging  in  his  bill 
that  the  smoke  and  vapor  arising  from 
the  brick-i)urning  would  be  injurious  to 
his  patients,  and  cause  them  to  leave  his 
asylum,  and  would  also  injure  the  trees, 
shrubs,  and  plants  thereon  growing;  and 
the  injunction  was  granted.  This  was 
done,  it  will  be  seen,  merely  upon  the  ap- 
prehension of  damage,  and  before  an^'  was 
actually  suffered. 

After  the  decision  of  this  case.  Hole  v. 
Barlow,  4  C.  B.  (N.   S.)  336,   was  decided. 


'  Tliat  was  an  action  for  a  nui.^ance  arising 
from  the  burning  of  bricks  on  defendant's 
I  own  land  near  to  the  plaintiffs  dwelling- 
house,  and  the  judge  at  the  trial  told  the 
jury  that  no  action  lies  for  the  reasonable 
use  of  a  lawful  trade  in  a  convenient  and 
proper  place,  even  though  some  one  may 
suffer  inconvenience  from  its  being  carried 
on,  and  he  left  two  questions  to  the  jury 
I  — First,  "  Was  the  place  in  which  the  bricks 
,  were  burned  a  proper  and  convenient 
'  place  for  the  purpose?"  secondly,  if  thej' 
thought  the  place  was  not  a  proper  i)lace 
for  the  purpose,  then  "  was  the  nuisance 
such  as  to  make  the  enjo^'ment  of  life  and 
property  uncomfortable?"  It  was  held 
that  there  was  no  misdirection.  That 
case,  which  was  In  conflict  with  prior  au- 
thorities, has  since  been  overruled  in 
Beardmore  v.  Tredwell,  31  Law  J.  Ch. 
892;  Bamford  v.  Turnkey,  31  Law  J.  Q.  B. 
286;  Cavey  v.  Led  bitter.  13  C.  B.  (N.  S.) 
470;  Bareham  v.  Hall.22LawT.  (N.S.)116; 
Roberts  v.  Clarke,  18  Law  T.  (N.  S.)  49; 
Luscombe  v.  Steer,  17  Law  T.  (N.  S.)  229. 
In  Beardmore  v.  Tredwell  the  court 
sranted  an  injunction  restraining  the 
burninjr  of  bricks  within  650  yards  of  the 
plaintiffs  dwelling,  holding  that  the  burn- 
ing of  bricks  within  350  yards  of  the  plain- 
tiff's residence  was  a  nuisance,  although 
the  bricks  were  to  be  used  in  the  erection 
of  government  fortifications.  V\ce-Chan- 
cellor  Stuart  says:  "Upon  the  facts  of 
the  present  case,  notwithstanding  thecon- 
tradictory  evidence,  my  mind  is  satisfied 
that  there  has  been  an  actual  and  posi- 
tive injury  to  the  plaintiff ;  that  the  com- 
fort and  enjoyment  of  his  mansion-house 
are  injured;  that  the  trees  planted  and 
standing  and  growing  for  ornament  have 
been,  in  some  cases,  entirely  destroyed, 
and  in  many  cases  injured.'' 

In  Bamford  v.  Turnley,  Cockbur.v,  C.  J., 
before  whom  the  case  was  tried,  followed 
Hole  V.  Barlow,  and  charged  the  jury  that 
if  they  thought  the  spot  was  convenient 
and  proper,  and  that  the  use  by  the  de- 
fendant of  his  premises  was,  under  the  cir- 
cumstances, a  reasonable  use  of  his  own 
land,  he  would  be  entitled  to  a  verdict. 
The  jury  found  for  the  defendant,  but 
upon  the  hearing  in  the  exchequer  cham- 
ber it  was  held  that  the  instructions  were 
erroneous,  and  that  it  was  no  answer,  in 
anaction  for anuisancecreating actual  an- 
noyance and  di.scomfort  in  the  enjoyment 
'  of  neighboring  property,  that  the  injury 
\  resulted  from  a  reasonable  use  of  the  prop- 
i  erty,  and  that  the  act  was  done  in  a  conven- 
ient place,  nor  that  the  same  business  had 
been  carried  on  in  the  same  locality  for  17 
years.  The  doctrine  of  Hole  v.  Barlow 
was  distinctlj'  repu<liated,  and  that  case 
was  in  terms  overruled. 
I  luCavey  v.  Ledbitter,  an  action  for  a  nui- 
sance caused  by  brick-burning,  the  judge 
at  the  trial  left  it  to  the  jur3',in  substance, 
to  say  whether  the  acts  of  the  defendant 
rendered  the  plaintiff's  residence  substan- 
tially uncomfortable,  and  whether  his 
shrubs  and  fruit-trees  had  been  thereby 
injured;  and  he  refused  to  ask  them 
whether  the  bricks  had  been  burned  in  a 
convenient  place,  and  it  was  held  that 
there  was  no  misdirection. 
I     In  Bareham  v.  Hall  a  bill  was  filed  for  an 


166 


LAW  OF  TOUTS. 


Injunction  to  restrain  the  defendant  from 
using  a  brick-l^iln  in  sucli  a  way  as  to  be  a 
nuisance  to  tlie  property  of  plaintiff,  or  to 
plaintiff  and  liis  family.  There,  as  here,  the 
damage  and  annoyance  were  suffered  only 
when  the  wind  blew  from  the  direction 
of  the  kiln  ;  and  Vice-Chancellor  Stu- 
art said  "that, />77//m  facie,  a  brick-kiln 
built  within  100  yards  in  front  of  a  man- 
sion-house would  be  a  nuisance,  unless  the 
process  used  for  burning  the  bricks  was 
one  of  an  unusual  kind.  " 

Roberts  v.Clarkewas  a  billforan injunc- 
tion restraining  the  defendant  from  burn- 
ing brick  on  his  premises  to  the  injury  of 
plaintiff's  pi-emises,  and  the  vice-chancel- 
lor held  that  brick-burning  carried  on  in 
the  ordinary  way  was  a  nuisance  to  per- 
sons living  within  the  limits  affected  by 
it,  and  that  240  yards  was  no  extreme 
limit  for  the  smoke  and  vapor  to  extend, 
and  that  it  was  such  a  nuisance  as  the 
court  would  restrain. 

In  Luscombe  v.Steerthe  defendant  rent- 
ed premises,  and  began  to  burn  brick  with- 
in 1,442  feet  of  the  plaintiff's  house,  on 
premises  adjoining.  At  the  time  when  the 
bill  was  brought  no  actual  injury  had 
been  sustained  by  the  plaintiff,  but  the 
bill  was  predicated  upon  a  prospective 
nuisance.  The  court  denied  an  injunction 
upon  the  grounds  that,  no  actual  injury 
having  been  sustained,  no  nuisance  exist- 
ed ;  and  that  no  evidence  having  been  giv- 
en to  establish  the  fact  of  prospective  nui- 
sance, it  was  not  a  case  for  equitable  re- 
lief. But  the  court  said  :  "If  the  business 
should  hereafter  become  a  nuisance  to  the 
plaintiff,  he  can  then  apply  to  the  court 
for  relief,  and  his  rights  will  be  protected.  " 

In  this  country,  so  far  as  1  can  ascer- 
tain, the  question  of  nuisance  from  brick- 
burning  has  rarely  been  before  the  courts. 
The  only  case  to  which  oui"  attention  has 
been  called  is  Huckenstine's  Appeal,  70 
Pa.  St.  102.  In  that  case  Agm:w,  J.,  says: 
"Brick-making  is  a  useful  and  necessary 
employment,  and  must  be  pursued  near 
to  towns  and  cities  where  bricks  are  chiefly 
used.  Brick-burning,  an  essential  part  of 
the  business,  is  not  a  nuisance  per  se.  At- 
torney General  v.  Cleaver,  18  Ves.  219.  It, 
as  many  useful  employments  do,  may  pro- 
duce some  discomfort,  and  even  some  in- 
jury, to  those  near  by,  but  it  does  not  fol- 
low that  a  chancellor  would  enjoin  there- 
for." He  then  goes  on  to  saj-  that  the 
aid  of  an  injunction  is  not  matter  of  right, 
but  of  grace;  and  concludes  that  there 
were  so  many  similar  nuisances  in  the  lo- 
cality that  it  was  not  clear  that  this  nui- 
sance increased  the  discomfort  from  them, 
and  that  it  was  doubtful  whether  the 
plaintiff  had  suffered  any  material  dam- 
age from  the  acts,  and  therefore  held  that 
an  injunction  ought  not  to  issue,  and  that 
the  plaintiff  should  be  left  to  his  remedy 
at  law.  In  the  following  analogous  cases, 
useful  industries,  which  produced  smoke 
or  noxious  gases  or  vapors  or  odors,  were 
declared  nuisances:  Catlin  v. Valentine,  9 
Paige,  575;  Peck  v.  Elder,  3  Sandf.  129; 
Taylor  v.  People,  G  Parker,  Crim.  R.  352; 
Davis  V.  Lam  bertson,  5(5  Barb. 480;  Hutch- 
ins  V.  Smith,  63  Barb.  251  ;  Whitney  v. 
Bartliolomew,  21  Conn.  213  ;  C!ooi)er  v.  Ran- 
dall, 53  111.  24;  Rex  v.  White,  1  Burrows, 


3.37;  Cooke  v.  Forbes,  L.  R.  5  Eq.  166; 
Sampson  v.  Smith,  8  Sim.  272;  Tipping  v. 
Smelting  Co.,  4  Best  &  S.  608;  Crump  v. 
Lambert,  L.  R.  3  Eq.  409;  Pointer  v.  Gill, 
2  Rolle,  Abr.  140. 

Without  further  citation  of  authority, 
I  think  it  may  safely  be  said  that  no  defi- 
nition of  nuisance  can  be  found  in  any 
text-book  or  reported  decision  which  will 
not  embrace  this  case. 

But  theclaira  is  made  that,  although  the 
brick-burning  in  this  case  is  a  nuisance,  a 
court  of  equity  will  not  and  ought  not  to 
restrain  it.  and  the  plaintiffs  should  be  left 
to  their  remedy  at  law  to  recover  dam- 
ages, and  this  claim  must  now  be  exam- 
ined. Prior  to  Lord  Eldon's  time,  in- 
junctions were  rarely  issued  by  courts  of 
eijuity.  During  the  many  years  he  sat 
upon  the  woolsack  this  remedy  was  re- 
sorted to  with  increasing  frequency,  and, 
with  the  development  of  equity  jurispru- 
dence which  has  taken  place  since  his 
time,  it  is  well  said  that  the  writ  of  injunc- 
tion has  become  the  right  arm  of  the 
court.  It  was  formerly  rarely  issued  in 
the  case  of  a  nuisance  until  plaintiff's 
right  had  been  established  at  law%and  the 
doctrine  which  seems  now  to  prevail  in 
Pennsylvania,  thatthis  writ  is  not  matter 
of  right,  but  of  grace,  to  a  large  extent 
prevailed.  But  now  a  suit  at  law  is  no 
longer  a  necessary  preliminarj',  and  the 
right  to  an  injunction,  in  a  proper  case,  iu 
England  and  most  of  the  states,  is  just  as 
fixed  and  certain  as  the  right  to  any  other 
provisional  remedy.  The  writ  can  right- 
fully be  demanded  to  prevent  irreparable 
injury,  interminable  litigation,  and  a  mul- 
tiplicity of  suits,  and  its  refusal  in  a  prop- 
er case  would  be  error  to  be  corrected  by 
an  appellate  tribunal.  It  is  matter  of 
grace  in  no  sense,  except  that  it  rests  in 
the  sound  discretion  of  the  court,  and 
that  discretion  is  not  an  arbitrary  one. 
If  impr<jperly  exercised  in  any  case,  either 
in  granting  or  refusing  it,  the  error  is  one 
to  l;e  corrected  upon  appeal.  Corning  v. 
Nail  Factory,  40  N.  Y.  191 ;  Reid  v.  Gifford, 
Hopk.  Ch.  416;  Pollitt  v.  Long,  58  Barb. 
20;  Railroad  Co.  v.  Artcher,  6  Paige.  83; 
Parker  V.  Woollen  Co.,  2  Black,  545,551; 
Webber  v.  Gage,  39  N.  H.182;  Dent  v.  Auc- 
tion Mart  Co.,  35  Law  J.Ch.5.55;  Attorney 
General  v.  Telegraph  Co.,  30  Beav.  287; 
Wood  V.  Sutcliffe,  2  Sim.  (N.  S.)  165 ,  Clowes 
V.  Potteries  Co..  L.  R.  8  Ch.  App.  125. 
Here  the  i-emedy  at  law  was  not  ade- 
quate The  mischief  was  substantial, 
and,  within  the  principle  laid  down  in  the 
cases  above  cited,  and  others  to  which  our 
attention  has  been  called,  ii-reparable. 

The  plaintiffs  had  built  a  costly  man- 
sion, and  had  laid  out  their  grounds,  and 
planted  them  with  ornamental  and  useful 
trees  and  vines,  for  their  comfort  and  en- 
jo3'ment.  How  can  one  be  compensated 
in  damages  for  the  destruction  of  his  or- 
namental trees,  and  the  flowers  and  vines 
which  surrounded  his  home'?  How  can 
a  jury  estimate  their  value  in  dollars  and 
cents'?  The  fact  that  trees  and  vines  are 
for  ornament  or  luxury  entitles  them  no 
less  to  the  protection  of  the  law.  Every 
one  has  the  rightto  surround  himself  with 
articles  of  luxury,  and  he  will  be  no  less 
protected  than  one  who  provides  himself 


NUISANCE. 


167 


only  with  articles  of  necessity.  The  law 
will  protect  a  flower  or  a  vine  as  well  as  an 
oak.  Cooke  v.  Forbes,  L>.  R.  5  Eq.  100; 
Broarlbent  v.  Gas  Co.,  7  De  (lex,  M.  &  G. 
430.  These  damages  are  irreparable,  too, 
because  the  trees  and  vines  cannot  be  re- 
placed, and  the  law  will  not  compel  a  per- 
son to  take  money  rather  than  the  objects 
of  beauty  and  utility  which  he  places 
around  his  dwellinjito  gratify  his  taste  or 
to  promote  his  comfort  and  his  health. 

Here  the  injunction  also  prevents  a  mul- 
tiplicity of  suits.  The  injury  is  a  recurring- 
one,  and  every  time  the  poisonous  breath 
from  defendant's  brick-kiln  sweeps  over 
plaintifls"  land  they  have  a  cause  of  action. 
Unless  the  nuisance  be  restrained,  the  liti- 
gation would  be  interminable.  The  poli- 
cy of  the  law  favors,  and  the  peace  and 
good  order  of  society  are  best  promoted 
by,  the  termination  of  such  litigation  by 
a  single  suit.  The  fact  that  this  nuisance 
is  not  continual,  and  that  the  injury  is 
only  occasional,  furnishes  no  answer  to 
the  claim  for  an  injunction.  The  nuisance 
has  occurred  often  enough  within  two 
years  to  do  the  plaintiffs  large  damage. 
Every  time  a  kiln  is  burned  some  injury 
may  be  expected,  unless  the  wind  should 
blow  the  poisonous  gas  away  from 
plaintiff.1.'  lands.  Nuisances  causing  dam- 
age less  frequently  have  been  restrained. 
Ross  V.Butler.  19  N.J.  Ea.  294;  Meigs  v.  Lis- 
ter, 23  N.  J.  Eq.  200;  Clowes  v.  Potteries 
Co.,  supra;  Mulligan  v.  Elias,  12  Abb.  Pr. 
(N.  S.)  259.  It  matters  not  that  the  brick- 
yard was  used  before  plaintiffs  bought 
their  lands  or  built  their  houses.  Taylor 
v.  People,  supra;  AVier's  Appeal,  74  Pa. 
St.  230;  Brady  v.  AVeeks,  3  Barb.  157;  Bar- 
well  v.  Brooks,  1  Law  T.  4.54.  One  can- 
not erect  a  nuisance  upon  his  land  ad- 
joining vacant  lands  owned  by  another, 
and  thus  measurably  control  the  uses  to 
which  his  neighbor's  land  may  in  the  fut- 
ure be  subjected.  He  may  make  a  rea- 
sonable and  lawful  use  of  his  land,  and 
thus  cause  his  neighbor  some  inconven- 
ience, and  probably  some  damage  which 
the  law  would  regaid  as  damnum  absque 
injuria.  But  he  cannot  place  upon  his 
land  anj^thing  wMiich  the  law  would  pro- 
nounce a  nuisance,  and  thus  compel  his 
neighbor  to  leave  his  land  vacant,  or  to 
use  it  in  such  way  only  as  the  neighboring 
nuisance  will  allow. 

It  is  claimed  that  the  i^laintiffs  so  far  ac- 
quiesced in  this  nuisance  as  to  bar  them 
from  any  equitable  relief.  I  do  not  per- 
ceive how  any  acquiescence  short  of  20 
years  can  bar  one  from  complaining  of  a 
nuisance,  unless  his  conduct  has  been  such 
as  to  estop  him.  There  is  no  proof  that 
plaintiffs,  when  they  boiight  their  lands, 
knew  that  any  one  intended  to  burn  any 
bricks  upon  the  land  now  owned  by  de- 
fendant. From  about  1840  to  18.53  no 
bricks  were  burned  there.  Then,  fiom  18.53 
to  1857,  bricks  were  burned  there,  and  then 
not  again  iintil  1807.  FromJs,57  to  1807 
the  brick-yard  was  plowed  and  used  for 
agricultural  purposes.  Before  suit  brought 
plaintiffs  objected  to  the  brick-burning. 
No  act  or  omission  of  theirs  induced 
the  defendantto  incur  largeexi)ens('s,  orto 
take  any  action  which  could  be  the  basis 
of  an  estoppel  against  them,  and  therefore 


there  was  no  acquiescence  or  laches  which 
should  bar  the  plaintiffs,  within  anj-  rule 
laid  down  in  any  reported  case.  It  is  true 
that  if  a  party  sleeps  on  his  rights,  and 
allows  a  nuisance  to  go  on  without  remon- 
strance, or  without  taking  measures,  ei- 
ther by  suit  at  law  or  in  equity,  to  pro- 
tect his  rights,  and  allows  one  to  go  on 
making  large  expenditures  about  the  busi- 
ness which  constitutes  the  nuisance,  he 
will  sometimes  be  regarded  as  guilty  of 
such  laches  as  to  deprive  him  of  equitaiile 
relief.  But  this  is  not  such  a  case.  Baden- 
hurst  v.Coate,  0  Grant,  Ch.l40;  Heenan  v. 
Dewar,  18  Grant,  Ch.  438;  Bankart  v. 
Houghton,  27  15eav.  425.  The  defendant 
claims  a  prescriptive  right  to  burn  bricks 
upon  his  land,  and  to  cause  the  poisonous 
vapors  to  flow  over  plaintiffs'  lands. 
Assuming  that  defendant  could  acquire, 
by  lapse  of  time  and  continucius  user,  the 
prescriptive  right  which  he  clain)8,  there 
has  not  hei-e  been  a  continuous  use  and 
exercise  of  the  right  for  20  consecutive 
years.  Anthracite  coal  was  first  used  for 
burning  bricks  in  this  yard  in  1834,  and 
after  six  years  brick-burning  was  discon- 
tinued. It  was  not  resumed  again  until 
about  1853,  and  after  four  years  it  was 
again  discontinued,  and  it  was  not  re- 
sumed again  until  1807.  So  that  anthracite 
coal,  which  caused  plaintiffs' damage,  had 
not  been  used  in  all  for  20  years,  and  cer- 
tainly not  continuously  in  burning  bricks 
upon  the  yard  now  owned  by  defendant. 
If  he  could  acquire  the  right  claimed  by 
prescription,  he,  and  those  under  whom 
he  holds,  must  for  20  years  have  caused  the 
poisonous  gases  to  flow  over  plaintiffs' 
land  whenever  they  burned  bricks,  and 
the  wind  blew  from  the  direction  of  the 
kiln.  Such  a  prescription  neither  the  alle- 
gations in  the  answer,  nor  the  proofs  upon 
the  trial,  nor  the  findings  of  the  referee, 
warrant.  The  referee  finds  that  the  prem- 
ises of  defendant  have  been  known  and 
used  as  a  brick-yard  for  over  25  years. 
This  is  not  findingthat  they  have  been  used 
as  a  brick-yard  for  25  years  continuously,  or 
that  they  have  caused  the  poisonous 
gases  to  flow  over  plaintiffs'  land  for  that 
length  of  time  continuously.  Ball  v.  Kay, 
L.  R.  8  Ch.  App.  407;  Parker  v.  Mitchell, 
11  Adol.&E.788;  Battishill  v.  Reed,  ISC.  B. 
(N.  S.)  090;  Fish  Co.  v.  Dudley,  37  Conn. 
130.  Where  the  damage  to  one  complaining 
of  a  nuisance  is  small  or  trifling,  and  the 
damage  to  the  one  causing  the  nuisance 
will  be  large  in  case  he  be  restrained,  the 
courts  will  sometimes  deny  an  injunction. 
But  such  is  not  this  case.  Here  the  dam- 
age to  the  plaintiffs,  as  found  by  the  ref- 
eree, is  large  and  substantial.  It  does  not 
appear  how  much  damage  the  defendant 
will  suffer  from  the  restraint  of  the  injunc- 
tion. He  does  not  own  the  only  piece  of 
ground  where  bricks  can  be  made.  We 
know  that  material  for  brick  may  exist  in 
all  parts  of  our  state,  and  particularly  at 
various  points  along  the  Hudson  river. 
An  injunction  need  not.  therefore,  destroy 
defendant's  business,  or  interfere  mate- 
rially "^vith  the  useful  and  necessary  trade 
of  brick-making.  It  does  not  appear  how 
valuable  defendant's  land  is  for  a  brick- 
yard, nor  how  expensive  are  his  erections 
for   brick-making.     1   think  we  may  infer 


168 


LAW  OF  TORTS. 


tliat  they  are  not  expensive.  For  ao£?Iit 
that  appears,  his  hiiifl  may  be  put  to  oth- 
er use  just  as  prolitablp  to  him.  It  does 
not  appear  that  defendant's  damage  from 
an  abatement  of  the  nuisance  aa-jH  be  as 
great  as  plaintiffs'  damagefrom  itseontin- 
uance.  Hence  tl)is  is  not  a  case  within  any 
autliority  to  which  our  attention  has 
been  called  where  an  injunction  should 
be  denied  on  account  of  tiie  serious  conse- 
quences to  the  defendant.  We  cannot  ap- 
prehend that  our  decision  in  this  case  can 
improperly  embarrass  those  engaged  in 
the  usefultrade  of  brick-making.  Similar 
decisions  in  England,  where  population 
and  human  habitations  are  more  dense,  do 
not  appear  to  have  produced  any  embar- 
rassment. Inthis  country  there  can  be  no 
trouble  to  find  i)laces  where  brick  can  be 
made  without  damage  to  persons  living 
in  the  vicinity.  It  certainly  cannot  be  nec- 
essary to  make  them  in  the  heart  of  a 
village  or  in  the  midst  of  a  thickly-settled 
community. 

Defendant  complains  that  the  damage 
allowed  by  the  referee  was  too  great. 
He  had  the  evidence  and  all  the  circum- 
stances before  him.  and  wecannot  review 
his  decision  upon  the  amonnt  of  damage. 
It  is  also  complained  that  the  injunction 
contained  in  the  judgment  as  entered  is 
broader  and  more  unlimited  than  that  or- 
dered b\'  the  referee.  This  is  a  matter  not 
to  be  corrected  upon  appeal.  Defendant 
should  have  compelled  an  entry  of  judg- 
ment in  accordance  with  the  decision  of 
the  referee.  If  plaintiffs  entered  a  judg- 
ment not  authorized  by  the  referee's  re- 
port, defendant  should  have  moved  to  set 
it  aside  or  to  correct  it. 

One  of  the  three  judges  who  heard  the 
appeal  in  the  general  term  of  the  supreme 
court  died  before  the  decision  was  made, 
and  the  appeal  was  decided  by  the  remain- 
ing two  judges,  and  this  appeal  is  from 
the  judgment  entered  upon  that  decision. 
It  is  now  objected  that  the  two  judges 
could  not  make  a  decision.  Even  if  the 
defendant,  after  he  has  appealed  from  the 
judgment,  can  raise  the  objection,  we  are 
of  opinion  that  the  objecti(jn  is  not  well 
founded,  and  that  two  judges  can  hold  a 
general  term,  and  decide  cases  argued 
there.  Van  Rensselaer  v.  VVitheck,  2  Lans. 
499.  It  folloAAS  from  these  views  that  the 
judgment  should  be  affirmed. 

All  concur. 

Judgment  affirmed. 


(11  H.  L.  Cas.  *642.) 

St.  TTelkn's  Smelting  Co.  v.  Tipping. 

(House  of  Lords.    July  5,1865.) 

Nuisance  —  What  Constitutes  —  Vapoks  from 
Useful  Indcstkies. 
Id  an  action  to  recover  for  a  nuisance  caused 
by  vapors  arising  from  the  operation  of  defend- 
ant's smelting  works  on  adjoining  premises,  the 
court  charged  the  jury  that  every  man  is  bound 
to  use  his  own  property  in  such  a  manner  as  not 
to  Injure  the  property  of  hisueierhbor,  unless,  by 
the  lapse  of  a  cerLain  period  of  time,  he  has  ac- 
quired a  prescriptive  right  to  do  so;  that  the  law 
does  not  regard  trifling  inconveniences;  that 
everything  must  be   looked  at   from  a  reasonable 


point  of  view;  and,  therefore,  in  an  action  for 
nuisance  to  property  by  noxious  vapors  arising 
on  the  land  of  another,  the  injury,  to  be  action- 
able, must  be  such  as  visibly  to  diminish  the 
value  of  the  property,  and  the  comfort  and  enjoy- 
ment of  it;  that,  in  determining  that  question, 
the  time,  locality,  and  all  the  circumstances 
should  be  talien  into  consideration;  that,  in 
countries  where  great  works  have  been  erected 
and  carried  on  which  are  the  means  of  develop- 
ing the  natural  wealth,  persons  must  not  stand 
on  extreme  rights,  and  bring  actions  in  respect 
of  every  matter  of  annoyance,  as,  if  that  were 
so,  business  could  not  be  carried  on  in  tuese 
places.  The  court  refused  to  hold  that  the  ques- 
tions which  ought  to  be  submitted  to  the  jurj' 
were  "whether  it  was  a  necessary  trade,  whether 
the  place  was  a  suitable  place  for  such  a  trade, 
and  whether  it  was  carried  on  in  a  reasonable 
manner.  "    Held,  not  erroneous. 

Appeal  from  exchequer  chamber. 

Action  by  William  Tipping  against  the 
St.  Helen's  Copper  Smelting  Company, 
Limited,  for  a  nuisance  to  plaintiff's  dwell- 
ing-house and  premises  caused  by  nox- 
ious vapors  proceeding  from  smelting 
works  owned  and  operated  by  defendant 
on  adjoininglands,  which  destroyed  plain- 
tiff's trees  and  foliage,  injured  h;s  cattle, 
and  were  detrimental  to  his  health.  At 
tlie  trial  in  the  court  of  queen's  bench,  be- 
fore Mellor,  J.,  defendant's  counsel  con- 
tended that  the  three  questions  which 
ought  to  be  submitted  to  the  jury  Avere 
"  wnetherit  was  a  necessary  trade,  wheth- 
er the  place  was  a  suitable  place  for  such 
a  trade,  and  whether  it  was  carried  on  in 
a  reasonable  manner."  The  court  re- 
fused so  to  hold,  but  charged  the  jury  that 
every  man  is  bound  to  use  his  own  prop- 
erty in  such  a  manner  as  not  to  injure 
the  property  of  his  neighbor,  unless,  by 
the  lapse  of  a  certain  period  of  time,  he 
has  acquired  a  prescriptive  right  to  do 
so;  that  the  law  does  not  regard  trifling 
inconveniences;  that  everything  must  be 
looked  at  from  a  reasonable  point  of 
view;  and  therefore,  in  an  action  for  nui- 
sance to  property  by  noxious  vapors  aris- 
ing on  the  land  of  another,  the  injury,  to 
be  actionable,  must  be  such  as  Aisibly  to 
diminish  the  value  of  the  property,  and 
the  comfort  and  enjoyment  of  it ;  that,  in 
determining  that  question,  the  time,  lo- 
cality, and  all  the  circumstances  should  be 
taken  into  consideration;  that,  in  coun- 
tries where  great  works  have  been  erected 
and  carried  on  which  are  the  means  of  de- 
veloping the  natural  wealth,  persons  must 
notstand  on  extreme  rights,  and  bring  ac- 
tions in  respect  of  every  matter  of  annoy- 
ance, as,  if  that  were  so,  business  could 
not  be  carried  on  in  those  places.  The 
jury  f(}und  specially  that  the  enjoyment 
of  plaintiff's  property  was  sensil)ly  dimin- 
ished ;  that  the  business  carried  on  by  de- 
fendant was  the  ordinary  business  of 
smelting  copper,  and  conducted  in  a  prop- 
er manner,  in  as  good  a  manner  as  possi- 
ble; and  that  it  was  carried  on  in  a  pi-ijp- 
er  place;  aiwl  found  a  vei'dict  for  plaintiff 
for  £3(il  damages.  Defendant  moved  for  a 
new  trial,  which  was  refused.  4  Best  &  S. 
()08.  The  judgment  of  tiie  queen's  bench 
was  affirmed  by  the  exchequer  chainber, 
and  from  that  judgment  defendant  ap- 
pealed. 

The  Attorney  General  (Sir  R.  Palmer) 
and  Mr.  ]]'e/j.bfei-,  for  appellant.    Mr.  Brett, 


NUISANCE. 


169 


Mr.  MeHish,anCi  Mr.  Mihviiril,'iuv  rcspond- 
■mt. 

Mautix,  B.  In  tuiRwer  to  the  questions 
pioposed  bj'  your  lordships  to  the  judges, 
I  liave  to  state  their  unanimous  opinion 
that  the  directions  j^iven  by  tlie  learned 
judge  to  the  jur3'  are  correct,  and  that  a 
new  trial  ought  not  to  be  granted.  As 
far  as  the  exi)erience  of  all  of  us  goes,  the 
directions  are  such  as  we  have  given  in 
these  cases  for  the  last  20  years. 

The  Loud  Chancellor.  M3'  lords,  I 
think  your  lordships  will  be  satisfied  with 
the  answer  we  have  received  from  the 
learned  judges  to  the  question  put  by  this 
hou.se.  My  lords,  in  matters  of  this  de- 
scri])tion,  it  appears  to  me  that  it  is  a 
very  desirable  thing  to  mark  the  differ- 
ence between  an  action  brought  for  a  nui- 
sance upon  the  ground  tlial  the  alleged 
nuisance  j)ro(lu(!es  inatcrial  injiirj'  to  the 
property,  and  an  action  brought  for  a  nui- 
sance on  the  ground  that  the  thing  al- 
leged to  be  a  nuisance  is  productive  of 
sensible  personal  discomfort.  With  regard 
to  the  latter,  namely,  the  personal  conven- 
ience, an  interference  with  one's  enjoj'- 
ment,  one's  quiet,  one's  personal  freedom, 
anything  that  discomposes  or  injuriously 
effects  the  senses  or  the  nerves,  whether 
that  may  or  may  ncjt  be  denominated 
a  "nuisance, "  must  undoubtedly  depend 
greatly  on  the  circumstances  of  the  place 
where  the  thing  complained  of  actually 
(iCcurs.  If  a  man  lives  in  a  town,  it  is  nec- 
e>sary  that  he  should  subject  himself  to 
the  conse(iuenccs  of  those  operations  of 
trade  which  may  be  carried  on  in  his  im- 
mediate locality,  AA'hich  are  actually  nec- 
essary for  trade  and  commerce,  and  also 
for  the  enjoyment  oi  property  and  for  the 
benefit  of  the  inhabitants  of  the  town  and 
of  th.e  public  at  large.  If  a  man  lives  in 
a  street  where  there  are  numerous  shojis, 
and  a  shop  is  opened  ne.xt  door  to  him, 
which  is  carried  on  in  a  fair  and  reason- 
able way,  he  has  no  gi'ound  for  complaint 
because  to  himself  individually  there  may 
arise  much  discomfort  from  the  trade 
carri(Hl  c^n  in  that  shop;  but  when  an  oc- 
cni)ation  is  cari-ied  on  by  one  person  in 
the  neighborhood  of  another,  and  the  re- 
sult of  tiiat  tiade  or  occupation  or  busi- 
ness is  a  material  injury  to  property,  then 
there  unquestionably  arises  a  very  differ- 
ent consideratioiL  I  think,  my  lords, 
that,  in  a  case  of  that  description,  the 
submission  which  is  required  from  persons 
living  in  society  to  that  amount  of  dis- 
comfort wliich  may  be  necessary-  for  the 
legitimate  and  free  exercise  of  the  trade 
of  theii'  neighbors  would  not  apply  to  cir- 
cumstances the  immediate  result  of  which 
is  sensible  injury  to  the  value  of  the  prop- 
erty. Now,  in  the  present  case,  it  appears 
that  the  i)laintiff  purchased  a  very  valua- 
ble estate,  which  lies  within  a  mile  and  a 
half  from  certain  large  smelting  works. 
What  the  occuyiation  of  these  copper 
smelting  premises  was  anterior  to  the 
year  1S60  does  not  clearly  appear.  The 
plaintiff  became  the  proprietor  of  an  estate 
of  great  value  in  the  month  of  June, 
18(50.  In  the  month  of  September,  ISGO, 
very  extensive  smelting  operations   began 


on  the  property  of  the  present  appellant, 
—the  works  at  St.  Helen's.  ()l  the  effect 
of  the  vapors  exhaling  from  those  works 
ui)on  the  plaintiff's  prt>perty,  and  the  in- 
jury done  to  the  trees  and  shrubs,  thei-e  is 
abundance  of  evidence  in  the  case.  My 
lords,  the  action  has  been  br(jught  upon 
that;  the  jurors  have  found  the  existence 
of  the  injury-;  and  the  only  ground  upon 
which  your  lordships  are  asked  to  set 
aside  that  verdict,  and  to  direct  a  new 
trial,  is  this:  That  the  whole  neighbor- 
hood where  these  copper  smelting  wcu-ks 
were  carried  on  is  a  neighborhood  more 
or  less  devoted  to  manufacturing  pur- 
poses, of  a  similar  kind,  and  therefore  it  is 
said  that,  inasmuch  as  this  copper  smelt- 
ing is  carried  on  in  what  the  appellant 
contends  is  a  fit  place,  it  maj'  be  carried 
on  with  impunity,  allhougir  the  result 
maybe  the  utter  destructicjn  or  the  very 
considerable  diminution  of  the  value  of 
the  plaintiff's  property.  My  lords,  I  ap- 
prehend that  that  is  not  the  meaning  of 
the  word  "suitable,"  or  the  meaning  of 
the  word  "convenient."  which  has  been 
used  as  applicable  to  the  subject.  The 
word  "suitable"  unquestionably  cannot 
carry  with  it  this  consequence,— that  a 
trade  may  be  carried  on  in  a  particular 
localitj',  the  consequence  of  which  trade 
may  be  the  injury  and  destruction  to  the 
neighboring  proi)erty.  Of  course,  mi- 
lords, lexcept  cases  where  any  prescriptive 
right  has  been  acquired  b3'  a  lengthened 
user  of  the  place.  On  these  grounds, 
therefore,  shortly,  without  dilating  fur- 
ther upon  them,  (and  they  are  sufficiently 
unfolded  by  the  judgment  of  the  learned 
judges  in  the  court  l)elow,)  I  advise  j'our 
lordshipsto  affirm  the  decision  of  thecourt 
below,  and  to  refuse  the  new  trial,  and  to 
dismiss  the  appeal,  with  costs. 

Lord  Cranwokth.  My  lords,  I  entirelj' 
concur  in  opinion  with  my  noble  and 
leained  friend  on  the  wool-sack,  and  also 
in  the  oi)inion  expressed  V)y  the  learned 
judges  that  this  has  been  considered  to  be 
the  proper  mode  of  directing  a  jury,  as 
Mr.  Baron  Martin  said,  for  at  lea.st  20 
years.  I  believe  I  should  ha ve  carried  it 
back  rather  further.  In  stating  what  I 
always  understood  the  proper  question  to 
be,  I  cannot  do  better  than  adopt  the  lan- 
guage of  Mr.  Justice  Mellor.  Hesaj's: 
"It  must  be  plain  that  persons  using  a 
lime-kiln  or  other  works,  which  emit  nox- 
ious vapors,  may  not  do  an  actionable 
injury  to  another;  and  that  any  i)lace, 
where  such  an  operation  is  carried  on  so 
that  it  does  occasion  an  actionable  injurj' 
to  another,  is  not,  in  the  meaning  of  the 
law,  a  convenient  place."  I  alwa\'s  un- 
derstood that  to  be  so;  but  in  truth,  as 
was  observed  in  one  of  the  cases  by  the 
learned  judges,  it  is  extremely  difficult  to 
lay  down  any  actual  definition  of  what 
constitutes  an  injury,  because  it  is  always 
a  question  of  compciund  facts,  which  must 
be  looked  to,  to  see  whether  or  not  the 
mode  of  carrying  on  a  business  did  or  did 
not  occasion  so  serious  an  injury  as  to  in- 
terfere with  the  comforts  of  life  and  enjoy- 
ment of  property.  I  perfectly  well  remem- 
ber, when  I  had  the  honor  of  being  one  oi 
the  barons  of  the  court  of  exchequer,  try- 


170 


LAW  OF  TORTS. 


ing  a  case  in  the  county  of  Durham,  where 
there  was  an  action  for  injury  arising 
from  smoke  in  the  town  of  Shields.  It 
was  proved  incontestably  tluit  smol^e 
did  come,  and  in  some  degree  interfere 
with  a  certain  person,  but  I  said:  "You 
must  look  at  it,  not  with  a  view  to  the 
question  whether,  abstractedly,  that 
quantity  of  smoke  was  a  nuisance,  but 
whether  it  was  a  nuisance  to  a  person  liv- 
ing in  the  town  of  Shields;"  because,  if  it 
only  added  in  an  infinitesimal  degree  to 
the"  quantity  of  smoke,  I  thought  that 
the  state  of  the  town  rendered  it  altogeth- 
er impossible  to  call  that  an  actionable 
nuisance.  There  is  nothing  of  that  sort 
in  the  present  case.  It  seems  to  me  that  the 
distinction,  in  matter  of  fact,  was  most 
correctly  pointed  out  by  Mr.  Justice  Mki.- 
LOR,  and  I  do  not  think  he  could  possibly 
have  stated  the  law,  either  abstractedly, 
or  with  reference  to  the  facts,  better  than 
he  has  done  in  this  case. 

Lord  Wensleydale.     My  lords,  I  entire- 
ly agree  in   opinion  with    both   my   noble 


and  learned  friends  in  this  case.  In  these 
few  sentences  I  think  everything  is  includ- 
ed :  The  defendants  say,  "If  you  do  not 
mind,  you  will  stop  the  progress  of  works 
of  this  description.  "  I  agree  that  tliat  is 
so,  because,  no  doubt,  in  the  county  of 
liancaster,  above  all  other  counties,  where 
great  works  have  been  created  and  car- 
ried on.  and  are  the  means  of  developing 
the  national  wealth,  3'ou  must  not  stand 
on  extreme  rights,  and  allow  a  person  to 
say,  "I  will  bring  an  action  against  you 
for  this  and  that  and  so  on."  Business 
could  not  go  on  if  that  were  so.  Every- 
thing must  be  looked  to  from  a  reasona- 
ble point  of  view.  Therefore  the  law  does 
not  regard  trifling  and  small  inconven- 
iences, but  only  regards  sensible  incon- 
veniences,— injuries  Avhich  sensibly  dimin- 
ish the  comfort,  enjoyment,  or  value  of  the 
property  which  is  affected.  My  lords,  I  do 
not  think  the  question  could  have  been 
more  correctly  laid  down  by  any  one  to 
the  jury,  and  1  entirely  concur  in  the  pro- 
priety of  dismissing  this  appeal. 
Appeal  dismissed,  with  costs. 


(See,  also,  McCaffrey's  Appeal,  105  Pa.  St.  253;  Demarest  v.  Hardham,  34  N.  J.  Eq.  469;  Wier's 
Appeal,  74  Pa.  St.  230;  Davis  v.  Sawyer,  133  Mass.  2S9;  Boban  v.  Gas-Light  Co.,  122  N.  Y.  18,  25  N.  E. 
Rep.  246 ;  People  v.  Lead-Works,  82  Mich.  471,  46  N.  W.  Rep.  735 ;  Com.  v.  Miller,  139  Pa.  St.  77,  21 
Atl.  Rep.  13S.) 


II.  EXAMPLES  OF  NUISANCES. 


1.  Drainage  of  surface  -w^aters. 


(86  N.  Y.  140.) 
Barkley  v.  Wilcox. 

{Coun  of  Appeals  of  Xew  York.     Oct.  4,  1881. ) 

Surface  Waters — Obstructing. 

The  owner  of  land,  which  is  so  situated  that 
the  surf  ace  waters  from  the  land  above  naturally 
descend  upon  and  pass  over  it,  mayiuKOod  faith, 
and  for  the  purpose  of  building  upon  and  improv- 
ing his  land,  till  and  grade  it,  although  thereby 
the  water  is  prevented  from  reaching  it,  and  is 
detained  upon  the  land  above. 

Appeal  from  supi'eme  court,  general 
term,  second  department. 

Action  by  Alfred  Barkley  against  Nelson 
Wilcox  to  recover  damages  for  injuries  al- 
leged to  have  been  sustained  by  the  ob- 
struction of  the  natural  flow  of  surface 
water  from  plaintiff's  lot  over  and  across 
that  of  defendant.  The  case  was  submit- 
ted to  a  referee,  who  reported  in  favor  of 
defendant,  and  the  judgment  entered  there- 
on was  affirmed  by  the  general  term.  19 
Hun,  320.  From  the  judgment  of  the  gen- 
eral term  plaintiff  appealed. 

C.  E.  CuddehHck,  for  appellant.  J.  M. 
AUertoD,  for  respondent. 

Andrews,  J.  This  is  not  the  case  of  a 
natural  water-course.  A  natural  water- 
course is  a.  natural  stream,  flowing  in  a 
defined  bed  or  channel,  with  banks  and 
sides,  ha  ving  permanent  sources  of  sup- 
ply. It  is  not  essential  to  constitute  a 
water-course  that  the  flow  should  be  uni- 
form or  uninterrupted.  The  other  ele- 
ments existing,  a  stream  does  not  lose  the 
character  of  a  natural  water-course  be- 
cause, in  times  of  drought,  the  flow  may 
be  diminished,  or  temporarily  suspended. 
It   is  sufficient  if  it  is  usually  a  stream    of 


running  water.  Ang.  Water-Courses,  §  4; 
Luther  v.  Winnisimmet  Co.,  9  Cush.  171. 

The  parties  in  this  case  own  adjacent 
lots  on  a  street  near  a  village,  but  not 
within  the  corporate  limits.  The  findings 
are  that  the  natural  formation  of  the 
land  was  such  that  surface  water  from 
rains  and  melting  snows  would  descend 
from  different  directions  and  accumulate 
in  the  street  in  front  of  the  plaintiff's  lot, 
in  varying  quantities,  according  to  the 
nature  of  the  seasons,  sometimes  extending 
quite  far  back  upon  plaintiff's  lot;  that  in 
time  of  unusual  amount  of  rain  or  thaw- 
ing snow,  such  accumulations,  before  the 
grading  of  the  defendant's  lot,  were  accus- 
tomed to  run  off  overa  natural  dei»ression 
in  the  surface  of  the  land,  across  the  de- 
fendant's lot,  and  thence  over  the  lands  of 
others,  to  the  Neversink  river;  that,  when 
the  amount  of  water  was  small,  it  would 
soak  awaj-  in  the  ground  ;  that  in  l^'Tl  the 
defendant  built  a  house  on  his  lot,  and 
used  the  earth  excavated  in  digging  the 
cellar  to  improve  and  better  the  condi- 
tion of  his  lot,  by  grading  and  filling  up 
the  lot,  and  sidewalk  in  front  of  it,  about 
12  inches,  and  on  a  subsequent  occasion 
he  filled  in  several  inches  more;  that  in 
the  spring  of  1875  there  was  an  unusually 
large  accumulation  of  water  from  melting 
snow  and  rains  in  front  of  and  about  the 
plaintifi's  premises,  so  that  the  water  ran 
into  the  cellar  of  his  house,  and  occa- 
sioned serious  damage;  that  the  filling  in 
of  the  defendant's  lot  had  the  effect  to  in- 
crease the  accumulation  of  water  on  the 
plaintiff's  lot,  and  contributed  to  the  inju- 
ry to  his  property. 

There  was  no  natural  water-course  over 


NUISANCE. 


171 


the  defeiiclanfa  lot.  The  surface  water,  ' 
by  reason  of  the  natural  features  of  the 
p;ronii(l,  and  the  force  of  gravitj',  wheu  it 
accumulated  beyond  a  certain  amount  in 
front  of  the  plaintiff's  lot,  passed  upon 
and  over  the  lot  of  the  defendant.  The 
discharge  was  not  constant  or  usual,  but 
occasional  onlj'.  There  was  no  "chan- 
nel" or  *■  stream,"  in  the  usual  sense  of 
those  terms.  In  an  undulating  country, 
there  must  always  be  valleys  and  depres- 
sions, to  which  water,  from  rains  or 
snow,  will  find  its  way  from  the  hill-sides, 
and  be  finally  discharged  into  some  nat- 
ural outlet.  But  this  does  not  constitute 
such  valleys  or  depressions  water-courses. 
"Whether,  when  the  premises  of  adjoining 
owners  are  so  situated  that  surface  water 
falling  upon  one  tenement  naturally'  de- 
scends to  and  passes  over  the  other,  the  in- 
cidents of  a  water-course  apph'  to  and 
govern  the  rights  of  the  respective  parties, 
so  that  the  owner  of  the  lower  tenement 
may  not,  even  in  good  faith  and  for  the 
purpose  of  impi-oving  or  building  upon 
liis  own  land,  obstruct  the  flow  of  such 
water  to  the  injury  of  the  owner  above,  is 
the  question  to  be  determined  in  this 
case.  This  nuestion  does  not  seem  to 
have  been  authoritatively  decided  in  this 
stat^e.  It  was  referred  to  bv  Demo,  C.  J., 
in  Goodale  v.  Tuttle,  29  N.  Y.  467,  where 
he  said:  "And,  in  respect  to  the  running 
off  of  surface  water  caused  by  rain  or 
snow,  I  know  of  no  principle  which  will 
prevent  the  owner  of  the  land  from  filling 
up  the  wet  and  marshj'  places  on  his  own 
soil,  for  its  amelioration  and  his  own  ad- 
vantage, because  his  neigiibor's  land  is  so 
situated  as  to  be  incnmmoded  b3^  it. 
Such  a  doctrine  would  militate  against 
the  well-settled  rule  that  the  owner  of 
land  has  full  dominion  over  the  whole 
space  above  and  below  the  surface."  The 
case  in  which  these  observations  were 
made  did  not  call  for  the  decision  of  the 
question,  but  they  show  the  opinion  of  a 
great  judge  upon  the  point  now  in  judg- 
ment. Similar  views  have  been  expressed 
in  subsequent  cases  in  thiscourt,  although 
in  none  of  them,  it  seems,  was  the  ques- 
tion before  tlie  court  for  decision.  Van- 
derwiele  v.  Taylor,  65  N.  Y.  341;  Lynch  v. 
Mayor,  etc.,  76  N.  Y.  60.  The  question  has 
been  considered  by  courts  in  other  states, 
and  has  been  decided  in  different  ways.  In 
s(^me  the  doctrine  of  the  civil  law  has  been 
adopted  as  a  rule  of  decision.  By  that 
law,  the  right  of  drainage  of  surface  wa- 
ter, as  between  owners  of  adjacent  lands, 
of  different  elevations,  is  governed  by  the 
law  of  nature.  The  lower  proprietor  is 
bound  to  receive  the  waters  which  natu- 
rally flow  from  the  estate  above,  provided 
the  industry' of  man  has  not  created  or 
increased  the  servitude.  Corp.  Jur.  Civ. 
39,  tit.  3,  §§  2-."):  Domat,  (Cush.  P:d.)616; 
Code  Nap.  art.  64u;  Code  La.  art.  656.  The 
courts  of  Pennsylvania.  Illinois,  California, 
and  Louisiana  have  adopted  this  rule, 
and  it  has  been  referre:!  to  with  approval 
bv  the  courts  of  Ohio  and  Missouri.  Mar- 
tin V.  Riddle.  26  Pa.  St.  415;  Kauffman  v. 
Griesemer.  Id.  407;  Gillham  v.  Itailroad 
Co.,  49  111.  4s4;  Gormley  v.  Sanford,  52  III. 
15s;  Dgburn  v.  Connor,  46  Cal.o46;  Dela- 
houssaj'e  v.  Jndice,  13  La.  Ann.  5b7;  Hays 


V.  Hays,  19  La.  351;  Butler  v.  Peck.  16  Ohio 
St.  334;  Laumier  v.  Francis,  23  Mo.  Isl. 
On  the  other  hand,  the  courts  of  Massa- 
chusetts. New  Jersey,  New  Hampshire, 
and  Wisconsin  have  rejected  the  doctrine 
of  the  civil  law,  and  hold  that  therelation 
of  dominant  and  servient  tenements  does 
not,  by  the  common  law,  apply  between 
adjoining  lands  of  different  owners,  so  as 
to  give  the  upper  i)roprietor  the  legal 
right,  as  an  incident  of  his  estate,  to  have 
the  surface  water  falling  on  his  land  dis- 
charged over  the  land  of  the  lower  pro- 
prietor, although  it  naturally  finds  its 
wa3'  there;  and  that  the  lower  proprietor 
may  lawfully,  for  the  improvement  of  his 
estate  and  in  the  course  of  good  hus- 
bandry, or  to  make  erections  thereon,  till 
up  the  low  places  on  his  land,  although 
by  so  doing  he  obstructs  or  prevents  the 
surface  water  from  passing  thereon  from 
the  premises  above,  to  the  injury  of  the 
upper  proprietor.  Luther  v.  Winnisimmet 
(,'o.,  9  Cush.  171  ;  Parks  v.  Newburyport, 
10  Gray,  2S;  Dickinson  v.  Worcester,  7  Al- 
len, 19;  Gannon  v.  Hargadon,  10  Allen, 
106;  Bowlsby  v.  Speer.  31  N.  J.  Law,  351; 
Pettigrew  v.  Evansviile,  25  Wis.  223;  Hoyt 
V.  Hudson,  27  Wis.  656;  Swett  v.  Cutts, 
50  N.  H.  439.  It  may  be  observed  that  in 
Pennsylvania  house-lots  in  towns  and 
cities  seem  to  be  regarded  as  not  subject 
to  the  rule  declared  in  the  other  cases  in 
that  state  in  resi)ect  to  surface  drainage. 
Bentz  V.  Armstrong,  8  Watts  &  S.  40. 
And  in  Livingston  v.  McDonald,  21  Iowa, 
160.  the  court,  in  an  opinion  by  Dillon,  J., 
after  statin,^  the  civil-law  doctrine,  say 
that  it  may  be  doubted  whether  it  will  be 
adopted  by  the  common-law  courts  of 
this  country,  so  far  as  to  preclude  th.e 
lower  owner  from  making,  in  good  faith, 
improvements  wnich  would  have  the  ef- 
fect to  prevent  the  water  of  the  upper  es- 
tate from  flowing  or  passing  awaj'.  Pro- 
fessor Washburn  states  that  the  prevail- 
ing doctrine  seems  to  be  that  if,  for  the 
purposes  of  improving  and  cultivating  his 
land,  a  land-owner  raises  or  fills  it,  so  that 
the  water  which  falls  in  rain  or  snow  up- 
on an  adjacent  owner's  land,  and  which 
formerly  flowed  onto  the  first-mentioned 
parcel,  is  prevented  from  so  doing,  to  the 
injury  of  the  adjacent  parcel,  the  owner  of 
the  latter  is  without  remedy-,  since  the 
other  party  has  done  no  more  than  he  had 
a  legal  right  to  do.  Washb.  Easem.  (2d 
Ed.)  431. 

Upon  this  state  of  the  authorities,  we 
are  at  liberty  to  adopt  such  rule  on  the 
subject  as  we  may  deem  most  consonant 
with  the  demands  oi  justice,  having  iu 
view,  on  the  one  hand,  individual  rights, 
aTid  on  the  other  the  interests  of  society 
at  large.  Upon  consideration  of  the  ques- 
tion, we  are  of  opinion  that  the  rule  stat- 
ed by  De.vio,  C.  J.,  in  Goodale  v.  Tuttle, 
is  the  one  best  adapted  to  our  condition, 
and  accords  with  public  policy ;  while,  at 
the  same  time,  it  does  not  deprive  the 
owner  of  the  upper  tenement  of  any  l<-gal 
right  of  property.  The  maxim,  aqn;)  cur- 
rit  et  debet  cnrrere  iit  ciirrere  solehnt.  ex- 
presses the  general  law  which  governs  the 
rights  of  owners  of  [)roperty  on  water- 
courses. The  owners  of  land  on  a  water- 
I  course  are  not  owners  of  the  water  which 


172 


LAW  OF  TORTS. 


flf)v\-s  in  it.  But  each  owner  is  entitled,  |  and  the  owner,  in  doing  the  acts  supposed, 
I) \- virtue  of  his  owuersliij)  of  the  soil,  to  I  is  exercising  nierelj-  a  legal  right.  The 
the  reasonable  use  of  the  water,  as  it  owner  of  wet  and  spongy  land  cannot,  it 
passes  his  premises,  for  dotnesric  and  other  I  is  true,  by  draining  or  other  artificial 
uses,  not  inconsistent  with  a  like  reason-  means,  collect  the  surface  water  into 
able  use  of  the  stream  by  owners  above  channels,  and  discharge  it  upon  the  land 
and  below  him.  Such  use  is  incident  to  of  his  neighbor,  to  his  injury.  This  is  alike 
his  right  of   property  in  the  soil.     But   he   the  rule    of  the  civil   and   common   law 


cannot  divert,  or  unreasonably  obstruct, 
the  passage  of  the  watei-,  to  the  injury  of 
other  proprietors.  These  familiar  princi- 
ples are  founded  upon  the  most  obvious 
dictates  of  natural  justice  and  public  poli- 
cy. The  existence  of  streams  is  a  perma- 
nent provision  of  nature,  open  to  observa- 
tion by  every  purchaser  of  land  through 
which  they  pass.  The  multiplied  uses  to 
which  in  civilized  society-  the  water  of 
rivers  and  streams  is  applied,  and  the 
wide  injur3'  which  may  result  from  an  un- 
reasonable interference  with  the  order  of 
nature,  forbid  an  exclusive  appropi'iation 
by  an  individual  of  the  water  in  a  natural 
water-course,  or  any  unreasonable  inter- 
ruption in  the  flow.  It  is  said  that  the 
same  priucii)le  of  following  the  order  of 
nature  should  l^e  applied  between  coter- 
minous proprietors,  in  determining  the 
right  of  mere  surface  drainage.  But  it  is 
to  be  observed  that  the  law  has  always 
recognized  a  wide  distinction  between  the 
right  of  an  owner  to  deal  with  surface 
water  falling  or  collecting  on  his  land  and 
his  right  in  the  water  of  a  natural  water- 
course. In  such  water,  before  it  leaves  his 
land  and  becomes  a  part  of  a  definite  wa- 
ter-course, the  (nvner  of  the  land  is  deemed 
to  have  an  absolute  property,  and  he  may 
appropriate  it  to  his  exclusive  use,  or  get 
rid  of  it  in  any  way  he  can,  provided  only 
that  he  does  not  cast  it,  by  drains  or 
ditches,  upon  the  land  of  his  neighbor; 
and  he  may  do  this,  although  by  so  doing 
he  prevents  the  water  reaching  a  natural 
water-course,  as  it  formerly  did.  there- 
by occasioning  injury  to  mill-owners  or 
othpr  proprietors  on  the  stream.  So,  also, 
he  may,  by  digging  on  his  own  land,  in- 
tercept the  percolating  watei's  which  sup- 
ply his  neighbor's  spring.  Such  conse 
quential  injury  gives  no  right  of  action. 
Acton  V.  Blnndell.  12  Mees.&W.324;  Haw- 
istron  V.  Taylor,  11  Exch.  369;  Phelps  v. 
Nowlen,  72  N.  Y.  39.  Now,  in  these  cases 
there  is  an  interference  with  natural  laws. 
But  those  laws  are  to  be  construed 
in  connection  with  social  laws  and  the 
laws  of  property.  The  interference  in 
these  cases  with  natural  laws  is  justified, 
because  the  general  law  of  society  is  that 
the  owner  of  land  has  full  dominion  over 
what  is  above,  upon,  or  below  the  surface. 


Corp.  .Jur.  Civ.  39,  tit.  3,  §§  2,  3,  4,  5; 
Noouan  v.  City  of  Albany,  79  N.  Y.  475; 
Miller  v.  Laubach.  47  Pa.  St.  I.j4.  But  it 
does  not  follow,  we  think,  that  the  owner 
of  land  which  is  so  situated  that  the  sur- 
face water  from  the  lands  above  natural- 
ly descends  upon  and  passes  over  it  may 
not,  in  good  faith,  and  for  the  purpose  of 
building  upon  or  improving  his  land,  fill 
or  grade  it,  although  thereby*  the  water 
is  prevented  from  reaching  it,  and  is  re- 
tained upon  the  lands  above.  There  is  a 
manifest  distinction  between  casting  wa- 
ter upon  another's  land  and  preventing 
the  flow  of  surface  water  upon  your  own 
Society  has  an  interest  in  the  cultivation 
and  improvement  of  lands,  and  in  the  rec- 
lamation of  waste  lands.  It  is  also  for 
the  pulilic  interest  that  improvements 
shall  be  made,  and  that  towns  and  cities 
shall  be  built.  To  adopt  the  principle 
that  the  law  of  nature  must  be  observed, 
in  respect  to  surface  drainage,  would,  we 
think,  place  undue  restriction  upon  indus- 
try' and  enterprise,  and  the  control  of  an 
owner  of  hisproperty.  Of  course,  in  some 
cases,  the  opposite  principle  may  cause  in- 
jury to  the  upper  proprietor.  But  the 
question  should,  we  think,  be  determined 
largely  upon  considerations  of  public  pcjli- 
cy  and  genei-al  utility.  AYhich  rule  will,  on 
the  whole,  best  subserve  the  public  intei'- 
ests,  and  is  most  reasonable  in  practice? 

For  thereasons stated,  we  think  the  rule 
of  the  civil  law  should  not  be  adopted  in 
this  state.  The  case  before  us  is  an  illus- 
tration of  the  impolicy  of  following  it. 
Several  house-lots  (substantiall3'  village 
lots)  are  crossed  by  the  depression.  They 
must  remain  unimproved  if  the  right 
claimed  by  the  plaintiff  exists.  It  is  bet- 
ter, W3  think,  to  establish  a  rule  which 
will  permit  the  reclamation  and  improve- 
ment of  low  and  waste  lands  to  one  which 
will  impose  upon  them  a  perpetual  servi- 
tude, for  the  purpose  of  drainage,  for  the 
benefit  of  upper  propi'ietors.  \Ye  do  not 
intend  to  say  that  there  may  not  be  cases 
which,  owing  to  special  conditions  and 
circumstances,  should  be  exceptions  to  the 
general  rule  declared.  But  this  case  is 
within  it.  and  we  think  the  judgment  be- 
low should  be  atfirmed.     All  concur. 

Judgment  affirmed. 


fSee,  also,  Peck  v.  Goodberlett,  109  N.  Y.  180,  16  N.  E.  Rep.  350;  Boyd  v.  Conklin,  54  Mich.  583,  20 
N.  W.  Rep.  595;  Peck  v.  Herrington,  109  111.  611 :  Bowlsby  v.  Speer,  31  N.  J.  Law,  351;  Rathke  v.  Gard- 
ner, 134  Mass.  14;  Rindge  v.  Sargent,  64  N.  H.  294,  9  Atl.  Rep.  723.) 


2.  Diversion  and  detention  of  stream. 


(46  N.  Y.  511.) 
Clinton  v.  Myers. 
{Court  of  Appeals  of  Neiv  York.    Nov.  28, 1871.) 
1.  "Water-Courses — Detentiox  of  Stream. 

As  against   a   lower   riparian  owner,  a   person 
has  no  legal  right  to  detain,  by  means  of  a  stor- 


age dam  erected  upon  his  land,  such  surplus  wa- 
ters of  a  natural  water-course  crossing  his  lands 
as  he  may  not  require  for  present  use  until  they 
may  be  wanted  by  him  in  a  dry  season. 

2.   Same— IxjuxcTiON. 

The  fact  that  such  storage  makes  the  lower  ri- 
parian owner's  rights  more  valuable   is  immate- 


NUISANCE. 


173 


rial  if  he  insists  upon  his  legal  right  to  the 
water  as  it  would  naturally  flow,  and  such  right 
is  of  any  value  to  him.  Nor  will  a  court  of 
equity  inquire  as  to  his  motive  in  insisting  on 
his  legal  i-ights. 

Appeal  from  supreme  court,  general 
term,  sixth  judicial  district. 

Action  by  William  M.  Clinton  against 
Charles  P.  M3'ers  to  restrain  defendant 
from  opening  the  gate  of  plaintiff's  dam, 
and  letting  off  the  accumulated  water.s. 
Plaintiff  owned  the  land  forming  the 
boundaries  of  a  natural  pond  and  its  out- 
let. The  pond  was  formed  by  springs  and 
by  surface  waters  running  therein  in  rainy 
Seasons  and  from  melting  snows.  Plain- 
tiff owned  a  cotton  factory  some  three 
miles  below  this  pond,  which  was  run 
most  of  the  year  by  water  from  other 
sources,  and  he  constructed  a  dam  across 
the  outlet  of  the  pond  to  store  the  waters 
for  use  in  tiie  dry  seasons  when  his  other 
sui)ply  was  inadequate  to  run  his  mill. 
Defendant  owned  a  large  farm  between 
the  pond  and  plaintiff's  factory,  lying  up- 
on botli  sides  of  the  stream  from  the  pond, 
upon  which  stream  he  had  a  water-power 
and  saw-mill.  This  action  was  brought 
to  restrain  the  threatened  interference 
with  the  gates  of  plaintiff's  dam  to  let  off 
the  waters  of  the  pond.  The  court  award- 
ed an  injunction.     Defendant  appealed. 

H.  Starves,  for  appellant.  L.  J.  Bur- 
(litl,  for  respondent. 

Groa'kr,  J.  The  judgment  restraining 
the  defendant  from  interfering  with  the 
gate  and  other  structures  of  tiie  plaintiff 
at  the  outlet  of  the  pond  can  be  sustained 
only  in  case  the  jilaintiff  has  the  right  to 
maintain  the  dam  and  other  structures, 
and  thei-eby  control  the  flow  of  the  water 
in  the  manner  and  for  the  purposes  found 
by  the  sjiecial  term  for  which  it  was  con- 
trolled by  him;  and  foi-effecting  which, the 
structures  were  erected.  From  thesefacts 
it  appears  that  the  dam  and  structures 
were  erected  at  the  outlet  of  a  natural  pond 
of  ai)out  4u  acres,  into  which  one  or  more 
small  streams  run,  having  but  a  small 
quantity  of  water  in  a  dry  time  flowing 
therein,  but  in  the  wet  seasons — spring 
and  fall— a  much  larger  quantity  flowed 
into  and  out  oi  the  pond.  That  the  dam 
was  constructed  about  10  feet  above  the 
natural  outlet  of  the  pond,  and  used  to 
detain  the  water  in  the  pond  during  such 
portions  of  the  year  as  the  plaintiff's  fac- 
tory was  adequately  sujjplied  with  water 
from  a  strefim  below  the  dam,  (the  latter 
stream  originating  from  anothei- source,) 
and  when  this  failed  to  furnish  an  ade- 
quate supply'  the  deficiency  was  supplied 
from  the  reservoir,  in  a  steadj-  and  con- 
stant manner,  through  a  gate  in  a  trunk 
of  about  a  foot  square.  That  the  waters 
have  been  retained  and  used  by  the  plain- 
tiff with  the  sole  view  of  economizing  and 
utilizing  the  same  to  the  greatest  possible 
extent;  not  viciously',  or  with  any  intent 
to  injure  or  in  any  waj'  wrong  the  defend- 
ant. It  further  aupears  from  such  finding 
that  the  water  was  so  detained  by  the 
plaintiff  during  the  wet  seasons  in  the 
spring  ajid  fall,  until  wanted  for  use  \^y 
the  plaintiff  in  the  dry  seasons  of  winter 
and  summer.     The  judgment,  in  effect,  de- 


termines that  the  plaintiff  has  a  right  so 
to  detain  and  use  the  water,  it  being  nec- 
e^isary  so  to  do,  to  give  an  adequate  and 
profitable  power  to  propel  the  machinery 
(jf  a  factory  owned  by  him.  situate  al)out 
three  miles  below  the  outlet,  as  against 
the  defendant.  The  defendant  is  the  own- 
er of  a  parcel  of  land  situated  upon  both 
sides  of  the  stream  Ijetween  the  outlet  and 
the  plaintiffs  factory,  upon  which  there  is 
a  saw-mill  operated  by  the  defendant  dur- 
ing portions  of  the  year.  The  question 
to  be  determined  is  of  great  importance  to 
the  plaintiff,  the  case  showing  that  his 
factory  is  of  great  value,  which  will  be 
much  impaired,  if  not  wholly  destroyed, 
by  not  enjoying  the  right  to  control  and 
use  the  water  in  the  manner  claimed  by 
him  in  this  action.  AVhile  this  considera- 
tion should  induce  carein  theexamination 
of  the  case,  it  can  have  no  weight  in  the 
determination  of  the  legal  rights  of  the 
parties.  It  is  the  duty  of  the  court  to  ap- 
ply the  law  as  it  is  to  the  facts  of  every 
case,  and  give  to  every  part3'  his  legal 
rights,  irrespective  of  any  hardship  that 
may  be  thereby  caused  in  any  special  case. 
It  is  necessary  to  examine  the  question  as 
to  the  rights  of  riparian  owners,  as  the 
judgment  for  the  plaintiff,  to  its  full  ex- 
tent, depends  wholly  upon  those  rights. 

Kent  (3  Comm.  431))  says  that  everj-  pro- 
prietor of  lands  on  the  banks  of  a  river 
has  naturally  an  equal  right  to  the  use  of 
water  which  flows  in  the  stream  adjacent 
to  his  lands,  as  it  was  wont  to  run,  [cur- 
vere  solebnt,)  without  diminution  or  alter- 
ation. No  proprietor  has  a  right  to  use 
the  water,  to  the  prejudice  ot  other  pro- 
prietors above  or  below  him,  unless  he  has 
a  prior  light  to  divert  it,  or  a  title  to 
some  exclusive  enjoyment.  He  has  no 
property  in  the  water  itself,  but  a  simple 
usufruct  while  it  passes  along.  "Aqua 
curvit  et  debet  curreve  ut  currere  solebat," 
is  tlie  language  of  the  law.  Though  he 
may  use  the  water  while  it  runs  over  his 
land  as  an  incident  to  the  land,  he  cannot 
tinreasonably  detain  it  or  give  it  another 
direction,  and  he  must  return  it  to  its  or- 
dinary channel  when  it  leaves  his  estate. 
In  Tyler  v.  Wilkinson,  4  Mason,  3!)7,  Judge 
Story,  after  a  thorough  examination  of 
the  authorities,  says  that  every  proprie- 
tor upon  each  bank  of  a  river  is  entitled  to 
the  land  covei'ed  with  water  in  front  of  his 
bank  to  the  middle  thread  of  the  stream, 
etc.  In  virtue  of  this  ownership,  he  has  a 
right  to  the  use  of  the  water  flowing  over 
it  in  its  natural  current,  without  (iiniinu- 
tion  or  (obstruction.  But,  strictly  si)eak- 
ing.  he  has  no  ysroperty  in  the  water  itself, 
but  a  sinipleuse  of  it  while  it  passes  along. 
The  consequence  of  this  principle  is  that 
no  proprietor  has  a  right  to  use  the  watei 
to  the  prejudice  of  another.  It  is  wholly 
immaterial  whether  the  i)arty  be  a  pro- 
prietor above  or  below  in  th(>  course  of  a 
river.  The  right  being  common  to  all  the 
proprietors  on  the  river,  no  one  has  a 
right  to  diminish  the  quantity  which  will, 
according  to  the  natural  current,  flow  to 
a  proprietor  below,  or  to  throw  it  back 
upon  a  proprietor  above.  This  is  the  nec- 
essary result  of  the  perfect  equality  of 
right  among  all  the  proprietors  of  that 
which   is    common    to    all.     The  natural 


174 


LAW  OF  TORTS. 


«treara  existing  bj-  the  bounty  of  Provi- 
dence for  the  benefit  of  til e  land  Mirou^h 
which  it  flows,  is  an  incident  annexed  by 
operation  of  law  to  the  land  itself.  Wlien 
1  speak  of  this  common  ri^ht,  I  do  not 
mean  to  be  understood  as  holding  the  doc- 
tiine  that  there  can  be  no  diminution 
whatsoever,  and  no  obstruction  or  iniped- 
'ment  whatsoever,  by  a  riparian  proprie- 
tor, in  the  use  of  tl)e  water  as  it  flows;  for 
that  would  be  to  deny  any  valuable  use  of 
it.  There  may  be  and  there  must  be  al- 
lowed, of  that  which  is  common  to  all,  a 
reasonable  use.  The  true  test  of  the  prin- 
ciple and  extent  of  the  use  is  whether  it  is 
to  the  injury  of  the  other  proprietors  or 
not.  There  may  be  a  diminution  in  quan- 
tity, or  retardation  or  acceleration  of  the 
natural  current,  indispensable  for  the  gen- 
eral and  valuable  use  of  the  water,  prop- 
erly consistent  with  the  existence  of  the 
common  rij^ht.  The  diminution,  retarda- 
tion, or  acceleration,  not  positively  or 
sensibly  injurious,  by  diminishing  the  value 
of  the  common  right,  is  an  implied  element 
in  the  right  of  using  the  stream  at  all. 
The  law  here,  as  in  many  other  cases,  acts 
with  a  reasonable  reference  to  public  con- 
venience and  general  good,  and  is  not  be- 
trayed into  a  narrow  strictness,  subver- 
sive of  common  sense,  nor  into  extravagant 
looseness,  which  would  destroy  private 
rights.  A  water-course  begins  ex  jure  na- 
tuvie,  and,  having:  taken  a  certain  course 
naturally,  cannot  be  diverted.  "Aqua 
currit  et  debet  currere  ut  curreie  solebat" 
is  also  the  language  of  the  ancient  com- 
mon law.  That  is,  the  water  runs  natu- 
rally, and  should  be  permitted  thus  to  run, 
so  that  all  through  whose  lands  it  runs 
may  enjoy  the  privilege  of  using  it.  Ang. 
Water-Courses,  §  9-3.  This  is  sustained  by 
numerous  judicial  decisions  and  all  element- 
ary writers  upon  the  subject. 

How  far  the  natural  flow  of  the  stream 
may  be  interfere. 1  with  by  a  riparian  own- 
er, to  enable  such  owner  to  utilize  the 
stream,  for  the  purpose  of  propelling 
machinery,  has  frequently  been  the  subject 
of  judicial  examination.  Gould  v.  Duck 
Co.,  13  Graj-,  443,  may  be  regarded  as  a 
leading  case  upon  this  point.  In  this  case 
the  defendant  had  built  a  substantial  dam 
upon  the  stream,  and  drew  the  water  to 
its  factory  by  means  of  a  canal,  and,  after 
using  the  same,  returned  it  to  its  natural 
channel  before  it  reached  the  plaintiff's 
land.  The  stream,  at  ordinary  stages  of 
water,  afforded  an  ample  supply  for  the  i 
defendant's  factorj-;  but  in  seasons  of 
great  drought  the  defendant  was  unable 
to  operate  its  factory  during  all  the  usu- 
al working  hours  of  each  day,  but  was 
obliged,  in  order  to  create  the  requisite 
head  and  supply  of  water,  to  shut  its 
gates  earlier  than  usual  on  some  daj's, 
and  sometimes  for  an  entire  day,  and  thus 
arrest  the  usual  flow  of  the  water.  This 
was  the  injury  complained  of  by  the  plain- 
tiff, who  was  the  owner  of  a  mill  upon  the 
stream  directly  below  the  dam,  and  who 
was  injured,  to  some  extent,  by  being  de- 
prived of  the  use  of  the  water  Avhile  the 
natural  flow  was  thus  arrested  The 
court  held  that  this  use  of  the  water  by 
the  defendant  was  not  unreasonable,  and 
that,  if  such   use  did    at  times   interfere 


with  the  use  which  the  plaintiff  might 
have  made  of  the  water,  it  was  " dainuum 
iihsque  injuria.  "  The  doctrine  of  this  case 
simply  is,  that  a  party  has  a  right  to 
erect  a  dam  across  a  stream  uptmhisland, 
and  such  machinery  as  the  stream,  in  its 
ordinary  stages,  is  adequate  to  propel; 
and,  if  the  stream  in  seasons  of  drought 
becomes  inadequate  for  that  purpose,  he 
has  a  right  to  detain  the  water  for  such 
reasonable  time  as  may  be  necessary  to 
raise  the  requisite  head,  and  accumulate 
such  a  quantity  as  will  enable  him  to  use 
the  water  for  the  purpose  of  his  machin- 
ery. I  think  this  is  the  correct  legal  rule 
by  which  to  determine  the  rights  of  ripa- 
rian owners.  This  will  enable  each  owner 
to  make  an  advantageous  use  of  the  wa- 
ter. The  machinery  must  be  such  as  the 
power  of  thestream,  in  its  ordinary  stages, 
is  adequate  to  propel.  The  water  in 
times  of  drought  may  be  detained  for 
such  a  length  of  time  only  as  Is  necessary 
to  enable  it  to  be  advantageously  and 
profitably  used  upon  such  machinery.  If 
so  used  the  accumulation  will  be  dis- 
charged in  quantities  not  beyond  the  usu- 
al flow  of  the  stream.  This  will  enable 
every  owner  in  seasons  of  drought,  when 
unable  to  use  the  water  at  all  as  then 
naturally  flowing,  to  operate  his  ma- 
chinery to  some  extent  by  retaining  the 
water  so  as  to  raise  a  proper  head,  and 
such  quantity'  as  to  enable  him  to  use 
the  same.  By  so  doing,  he  is  not  liable  to 
an  action  by  an  owner  below,  whose 
machinery  does  not  require  for  its  opera- 
tion all  the  water  at  an  ordinary  stage, 
but  only  such  as  naturally  flows  during 
seasons  of  drought,  though  to  some  ex- 
tent injured  bj'  being  deprived  of  the  nat- 
ural flow.  But  the  machinery  must  be 
adapted  to  the  power  of  the  stream  at 
its  usual  stage.  An  owner  has  no  right 
to  erect  machinery  requiring  for  its  oper- 
ation more  water  than  the  stream  fur- 
nishes at  an  ordinary  stage,  and  operate 
such  machinery  by  ponds  full,  discharging 
upon  those  below  in  unusual  quantities, 
by  means  of  which  the  latter  are  unable 
to  use  it.  Merritt  v.  Brinkerhoff,  17  Johns. 
306.  In  Pitts  V  Lancaster  Mills,  13  Mete. 
(Mass.)  156,  it  was  held  that  an  owner 
had  a  right  to  construct  a  dam  and  detain 
the  water  long  enough  to  raise  a  head  by 
filling  it,  permitting  it  then  to  resume  its 
natural  flow.  In  Brace  v.  Yale,  10  Allen, 
441,  it  was  held  that  the  erection  of  a  res- 
ervoir dam  upon  a  small  stream,  there- 
by detaining  and  storing  up  the  water  un- 
til the  owner  of  the  dam  desired  to  use 
it,  and  drawing  from  the  pond  and  using 
it  when  he  had  occasion,  was  a  user  of 
the  stream  adverse  to  the  rights  of  the 
owners  below,  and,  if  continued  fc  r  a  suffi- 
cient length  of  time,  refined  into  a  right. 
This,  in  effect,  is  an  adjudication  that  an 
owner  has  not  a  right  to  create  a  reser- 
voir and  store  the  water  therein  for  future 
use,  and  that  by  so  doing  he  violates  the 
rights  of  the  owners  below,  for  the  pres- 
ervation of  which  the  law  will  afford  a 
remedj'. 

The  plaintiff  cites  Hoy  v.  Sterrett,  2 
Watts,  327;  Hetrich  v.  Deachler,  6  Pa. 
St.  32;  and  Hartzall  v.  Sill,  12  Pa  St.  248, 
— as  sustaining  the  right  to  store  the  wa- 


NUISANCE. 


175 


ter  for  future  use  claimed  by  the  plaintiff. 
Hetrich  v.  Peachler  simply  holds  that 
the  reason  a  l)lcness  of  the  detention  of 
water  by  the  owner  above  to  the  injury 
of  the  owner  below,  depending  as  it  must 
on  the  nature  and  size  of  the  stream  as 
well  as  the  business  to  which  it  was  sub- 
servient, was  a  question  of  fact  for  the 
Jury,  it  being  impossible  to  make  any 
ijeneral  lule.  Hoy  v.  Sterrett,  so  far  as 
the  questions  involved  have  any  bearing 
upon  the  present  case,  is  the  same  as  Het- 
rich V.  Dcachier.  In  Hartzall  v.  Sill,  12 
Pa.  St.  2-l!S.  it  was  held  that  The  proprie- 
tor of  a  mill  above  had  the  riglit  to  de- 
tain the  water  long  enough  for  the  pro])er 
use  of  his  mill;  and,  if  by  so  doing  the 
owner  below  was  injured,  it  was  "dam- 
num absque  injiirhi;"  and  whether  longer 
rletained  than  necessary  was  a  question 
of  fact  for  the  jury.  This  is  an  entirely' 
different  question  from  that  iiivoh'ed  in 
the  jjresent  case, — that  is,  whether,  when 
the  stream  furnishes  more  water  than  is 
necessary  to  run  a  mill,  the  owner  has  a 
right,  by  means  of  a  reservoir  dam.  to 
store  up  such  surplus  water  and  detain  it 
until  he  shall  want  it  for  use  in  a  dry  sea- 
son. Whaler  v.  Ahl,  29  Pa.  St.  9S,  is  in  con- 
flict with  the  law  of  this  state.  In  this  case 
the  defendant  had  erected  machinery  that 
the  usual  quantity  of  water  in  tlie  stream 
was  inade()uate  to  proi)el.  It  was  held 
that  he  might  erect  a  dam,  accumulate 
the  water,  and  with  such  accumulation 
run  his  mai-hinerj-,  discharging  the  water 
in  unusual  quantities  upon  the  owner  be- 
low. This  is  in  direct  conflict  with  Mer- 
ritt  V.  Brinkerhoff,  17  Johns.  320.  This 
right,  claimed  by  the  plaintiff,  to  detain 
such  surjilus  water  of  the  stream  as  he 
may  not  require  for  present  use  until 
wanted  in  a  dry  season,  has  no  founda- 
tion in  the  law,  and  is  in  direct  conflict 
with  the  maxim,  aqua  currit.  etc.,  supra. 
But  it  is  insisted  tliac  this  detention  docs 
uo  n)aterial  injury  to  the  defendant,  but 
thfit,  on  the  contrary,  his  power  is  made 
more  valuable  by  this  use  of  the  water. 
The  answer  to  this  is  that  he  must  be 
the  judge  whether  he  will  accept  of  any 
such   benefit.    He  is  entitled  to   the  water 


and  to  its  use  for  sawing  in  the  sj);  ing, 
according  to  the  natural  tlow,  jind  is  nut 
obliged  to  accept  and  use  It  foi-  that  or 
any  otiier  purjjose  during  the  drought  of 
summer.  Again,  it  is  snid,  and  the  fact 
is  so  found  by  the  special  term,  that  the 
defendant  insists  upon  his  right  to  the 
natural  tlow  of  the  water  in  the  striam 
from  a  bad  motive,  and  for  the  purpose 
of  annoying  the  plaintiff.  This  is  imma- 
I  terial.  Courts  have  no  power  to  deny  to 
'  a  party  his  legal  right  because  it  disap- 
i  proves  his  motives  for  insisting  upon  it. 
I  The  use  of  the  water  by  the  plaintiff,  to 
I  the  extent  awarded  by  the  judgment,  and 
protected  by  the  injunction,  has  not  con- 
:  tinned  20  years.  The  plaintiff  has  acquired 
)  no  I'ight  by  prescription.  Whether  he  lias 
I  any  such  a  right  to  detain  the  water  by 
a  five-feet  dam.  as  held  by  the  court  be- 
low, is  a  grave  questicju  upon  the  evi- 
dence; but,  as  its  determination  is  not 
necessary,  and  as  the  evideu'-e  may  be  dif- 
ferent upon  another  trial,  I  shall  not  ex- 
amine or  pass  upon  it.  The  counsel  for 
the  plaintiff  cites  from  the  opinion  of 
WooDRiFF,  .1.,  in  Corning  v.  Nail  Facto- 
ry, 40  N.  Y.  220,  the  proposition  that,  if 
it  was  clear  tliat  the  restoration  of  the 
water  was  of  no  value  to  the  plaintiff, 
the  case  would  not  call  for  equitable  in- 
terference. .Assuming  this  to  be  correct,  it 
has  no  application  to  the  i^resent  case. 
It  may  be  true  that  equity  will  not  in- 
terfere to  secure  to  a  party  a  legal  right 
of  no  value  to  him,  but  leave  him  to  his 
remedy  at  law.  But  interfering  to  re- 
strain him  from  enforcing  such  a  right 
on  the  ground  that  it  is  of  no  value,  is 
quite  anotiier  affair.  That  is  the  present 
case.  That  equity'  will  not  restrain  a  par- 
ty from  enforcing  his  legal  riglit  upon  any 
such  ground  is  too  clear  ff)r  discussion. 
There  was  notiiing  in  the  evidence  or 
finding  showing  that  the  defendant  was 
estopped  from  asserting  his  right  to  the 
natural  flow  of  the  water.  The  judgment 
appealed  from  must  be  reversed,  and  a 
new  trial  ordered  ;  costs  to  be  determined 
by  the  court  in  the  decision  of  the  case. 
All  concur,  except  Peckham,  J.,  not  voting. 
Judgment  reversed. 


(See,  also,  Messinger's  Appeal,  109  Pa.  St.  285,  4  All.  Rep.  162;  Moulton  v.  Water  Co.,  137  Mass. 
163;  Colrick  v.  Swinburne,  105  N.  Y.  503,  12  N.  E.  Rep.  427;  Embrey  v.  Owen,  6  Exch.  353;  Davis  v. 
Getchell,  50  Me.  002.) 


3.  Pollution  of  stream. 


(13  Allen,  IC.) 
MrKRlFIICKD    V.  LOMHARD. 

(Supreme  Judicial  Court  of  Massachusetts. 
Oct.  Term,  Ifctie.) 

Water-Courses — Poli.utiox  of  Stream. 

The  pollution  of  a  stream  of  water,  so  as  to 
prevent  the  use  of  it  for  any  of  the  reasonable 
and  proper  purposes  to  «-h;ch  running  water  is 
usuallj'  applied,  such  as  irrigation,  the  propul- 
sion of  machinery,  or  consumption  tor  domestic 
use,  is  an  infringement  of  the  rights  of  other 
riparian  owners,  and  creates  a  nuisanc«  which 
will  be  enjoined  at  the  suit  of  those  injured. 
Permitting  poisonous  and  corrosive  substances  to 
run  into  the  sti-eam,  which  corrode  and  destroy 
the  machinery  of  a  lower  proprietor,  will  be  en- 
joined. 


Case  reserved. 

Bill  in  equity  by  William  T.  Merrifield 
asrainst  Nathan  A.  Lombard  for  an  injunc- 
tion to  restrain  d»>fendant  from  throwing 
\itriol  and  other  noxious  substances  in  a 
natural  water-course,  whicii  so  coriupted 
the  water  that  it  corroded,  injured,  and 
de.stroyed  plaintiffs  engine  and  boilers 
used  in  his  factory.  The  parties  were  ri- 
parian owners  on  the  same  stream.  De- 
fendant liad  used  the  stream  for  more 
fliaii  20  years,  but  tiie  injurious  effects  of 
tlie  substances  thiuwn  in  the  stream  had 
not  become  ai)parent  save  in  the  last 
S  years  before  tlie  suit  was  brought.  At 
the  trial  the  case  was  reserved  by  the 
judge  for  the  supreme  court. 


176 


LAW  OF  TOliTri. 


W.  Brii-Ii^-irn,   for  plaintiff. 
dard,  for  defendant. 


E.    B.  Stod- 


BiGELOW,  C.  J.  The  case,  as  made  by 
the  bill,  answer,  and  agreed  facts,  estab- 
lishes a  clear  invasion  of  tiie  plaiotiff's 
right  b.v  the  defendant.  The  law  requires 
of  a  party  through  whose  land  a  natural 
water-course  passes  that  he  should  use  the 
■water  in  such  manner  as  not  to  destroy, 
impair,  or  materially'  affect  the  beneficial 
appropriation  of  it  by  the  proprietors  of 
land  below  on  the  same  stream.  Each 
riparian  owner  has  the  right  to  use  the 
■water  for  any  reasonable  and  proper  pur- 
pose, as  it  flows  through  his  land,  sub- 
ject to  the  restriction  that  he  shall  not 
thereby  deprive  others  of  a  like  use  and 
enjoynaentof  the  stream  as  it  runs  through 
their  land.  Any  diversion  or  obstruction 
of  the  water  which  substantially  dimin- 
isiies  the  volume  of  the  stream,  so  that  it 
does  not  flow  ut  currere  solehat,  or  which 
defiles  and  corrupts  it  to  such  a  degi-ee  as 
essentially  to  impair  its  purity  and  pre- 
vent the  use  of  it  for  anj'  of  the  reasonable 
and  proper  purposes  to  which  running 
water  is  usually  applied,  such  as  irrigation, 
the  propulsion  of  machinery,  or  consump- 
tion for  domestic  use,  is  an  infringement 
of  the  right  of  other  owners  of  land 
thi'ough  which  a  water-course  runs,  and 
creates  a  nuisance  *jr  which  those  there- 
by injured  are  entitled  to  a  remedy.  An 
injury  to  the  purity  or  quality  of  the  wa- 
ter, to  the  detriment  of  other  riparian 
owners,  constitutes.  In  legal  effect,  a 
■«-rong  and  an  invasion  of  private  right, 
in  like  manner  as  a  permanent  obstruction 
or  diversion  of  the  ■water.  It  tends  direct- 
ly to  impair  and  destroy  the  use  of  the 
stream  by  others  for  reasonable  and  prop- 


er purposes.  Mason  v.  Hill,  2  Nev.  &  M.^ 
747,  5  Barn.  &  Adol.  1 ;  Wood  v.  Waud,  13 
Jur.  472,  3  Exch.  74S ;  3  Kent,  Conini.  (6th 
Ed.)  439;  Antr.  Water-Courses,  §  130. 

It  is  conceded  in  the  present  case  that, 
bj'  the  mode  in  whi(;h  the  defendant  con- 
ducts his  business,  a  large  quantity  of  poi- 
sonous and  corrosive  substances  is  per- 
mitted to  run  into  the  "water  of  the  stream 
on  "which  the  plaintiff's  and  defendant's 
manufactories  are  both  situated,  which 
defiles  and  corrupts  the  water  to  such  an 
extent  that  the  machinery  of  the  plaintiff 
is  corroded  and  destroyed,  and  the  use  ot 
the  water  for  reasonable  and  proper  pur- 
poses is  impaired  and  prevented.  We  know 
of  no  rule  or  principle  of  law  by  which 
such  a  mode  of  appropriation  t)f  a  run- 
ning stream,  in  the  absence  of  any  jjroof 
of  a  ])aramount  right  or  title,  can  be  jus- 
tified or  excused,  as  against  a  riparian 
owner  of  land  on  the  same  stream  below. 
No  fact  appears  in  this  case  from  which 
any  right  by  grant,  prescription,  or  ad- 
verse use  is  shown  to  exist,  b3'  virtue  of 
which  the  defendant  can  claim  to  use  the 
stream  otherwise  than  as  a  riparian  own- 
er, entitled  to  the  natural  and  oi-dinary 
rights  and  privileges  which  usuallj'  and 
legally  attach  and  belong  to  the  owner  of 
land  on  the  banks  of  a  watei'-course.  It 
is  clear,  Iherefore,  that  he  has  been  guilty 
of  an  infi-action  of  the  plaintiff's  rights. 

The  right  of  the  latter  to  equitable  re- 
lief is  clear  and  unquestionable.  The  acts 
of  the  defendant  tend  to  create  a  nuisance 
of  a  continuous  and  constantly  accruing 
nature,  for  which  an  action  of  law  can  fur- 
nish no  adequate  relief.  Ang.  Water- 
Courses,  §§  444-446;  Bemis  v  Upham,  13 
Pick.  169;  Hill  v.  Sayles,  12  Cush.  454. 

Perpetual  injunction  granted. 


(See,  also,  Lockwood  Co.  v.  Lawrence,  77  Me.  297;  Dyeing  Co.  v.  Wanskuck,  13  R.  I.  611;  Wood- 
year  v.  Schaefer,  57  Md.  3S4:  Carhart  v.  Gas-Light  Co.,  22  Barb.  297;  Hayes  v.  Waldron,  44  N.  H.  580^ 
Holsman  v.  Bleaching  Co.,  14  N.  J.  Eq.  335.) 


4.  Noise. 


(146  Mass.  349,  15  N.  E.  Rep.  768.) 

Rogers  v.  Elliott 

(Supreme  Judicial  Court  of  Massachusetts. 
March  3,  ISSS.) 

Nuisances  —  Chough  Bells  —  Action  for  Dam- 
ages. 
A  person  who,  by  reason  of  a  sunstroke, 
is  peculiarly  susceptible  to  the  noise  caused  by 
the  ringing  of  a  church  bell,  situated  directly 
opposite  his  house  in  a  thickly  populated  district, 
cannot,  in  the  absence  of  evidence  of  express 
malice,  or  that  the  bell  was  objectionable  to  per- 
sons of  ordinary  health  and  strength,  maintain 
an  action  against  the  custodian  of  such  church 
for  sufferings  caused  by  the  ringing  of  such  bell. 

Exceptions  from  superior  court,  Barn- 
stable county  ;  Staples,  .ludge. 

Action  of  tort  by  .lesse  Rogers,  Jr., 
against  Thomas  P.  Elliott,  pastor  of  St. 
Peter's  Roman  Catholic  Church  in  Prov- 
incetowij.  to  recover  damages,  the  plain- 
tiff alleging  that  in  consequence  of  the 
continued  ringing  of  the  bell  on  said 
church,  by  the  orders  of  the  defendant, 
the  plaintiff  was  put  to  great  pain  and 
suffering.     It  appeared   at  the   trial  that 


plaintiff  was  lying  in  bed  at  his  father's 
house  opposite  the  church,  in  a  thicklj' 
settled  district,  suffering  from  a  sun- 
stroke, and  that  the  ringing  of  the  bell 
threw  him  into  convulsions;  that  defend 
ant  refused  the  request  of  plaintiff's  physi- 
cian not  to  ring  the  bell,  and  insisted  on 
ringing  it,  saying  that  he  should  not  stop 
ringing  the  bell  for  anybody,  even  if  he 
knew  a  pei'son  was  sick,  and  the  ringing 
would  kill  him.  A  verdict  was  directed 
for  defendant,  and  ijlaintiff  alleged  excep- 
tions. 

H.M.  Knowlton,  for  plaintiff.  J.  J.  Mc- 
Donouffh,  for  defendant. 

Knowlton,  J.  The  defendant  was  the 
custodian  and  authorized  manager  of 
property  of  the  Roman  Catholic  Church 
used  for  religious  worship.  The  acts  for 
which  the  plaintiff  seeks  to  hold  him  re- 
sponsible were  done  in  the  use  of  this 
property,  and  the  sole  question  before  us 
is  whether  or  not  that  use  was  unlawful. 
The  plaintiff's  case  rests  upon  the  propo- 
sition that  the  ringing  of  the  bell  was  a 
nuisance.     The  consideration  of  this  prop- 


NUISANCE. 


17? 


osition  invoU'es  an  inquiry'  into  what  tlie 
defendant  could  pruperb'  do  in  the  use  of 
the  real  estate  which  he  had  in  charge, 
and  what  was  the  standard  by  which  his 
rifrhts  were  to  be  measured.  It  appears 
that  the  church  was  built  upon  a  public 
street,  in  a  thickly-settled  i)art  of  the 
town;  and  if  the  rinuiufj;  of  the  bell  on 
iSundayshad  materially  affected  the  health 
or  comfort  of  all  in  the  vicinitj',  whether 
residing  or  passing  there,  this  use  of  tiie 
propertj'  would  have  been  a  public  nui- 
sance, for  which  there  would  have  been  a 
remedy  by  indictment.  Individuals  suf- 
fering from  it  in  their  persons  or  their 
l)roperty  could  have  recovered  damages 
for  a  private  nuisance.  Wesson  v.  Iron 
Co.,  13  Allen.  05.  In  an  action  of  this 
kind,  a  fundamental  question  is,  by  what 
standard,  as  against  the  interests  of  a 
neigiibor.  is  one's  right  to  use  his  real  es- 
tate to  be  measured?  In  densely  populat- 
ed communities,  the  use  of  propert3'  in 
many  ways  which  are  legitimate  and 
proper  necessarily  affects  in  greater  or  less 
degree  the  property  or  persons  of  others 
in  the  vicinity.  In  such  cases  the  inquiry 
always  is,  when  rights  are  called  in  ques- 
tion, what  is  reasonable  under  the  cir- 
cumstances? If  a  useof  property- is  objec- 
tionable solely  on  account  of  the  noise 
which  it  makes,  it  is  a  nuisance,  if  at  all, 
by  reason  of  its  effect  upon  the  health  or 
comfort  of  those  who  are  within  hearing. 
The  right  to  make  a  noise  for  a  proper 
purpose  must  be  measured  in  reference  to 
the  degree  of  annoyance  which  othei'S  may 
reasonably  be  required  to  submit  to.  In 
connection  with  the  importance  of  the 
business  from  which  it  proceeds,  that 
must  be  determined  by  the  effect  of  noise 
upon  i)eople  general^',  and  not  upon 
those. on  the  one  hand,  who  are  peculiarly 
susceptible  to  it.  or  those  on  the  other, 
who.  by  long  experience,  have  learned  to 
endure  it  without  inconvenience;  not  up- 
on those  whose  strong  nei'ves  and  robust 
health  enable  them  to  endure  the  greatest 
disturbances  without  suffering,  nor  up- 
on those  whose  mental  or  physical  condi- 
tion makes  them  painfully  sensitive  to 
everything  about  them.  That  this  must 
be  the  rule  in  regard  to  public  nuisances 
is  obvious.  It  is  the  rule  as  well,  and  for 
reasons  nearly,  if  not  quite,  as  satisfacto- 
ry, in  relation  to  private  nuisances.  Up- 
on a  Question  whether  one  can  lawfulb^ 
ring  his  factory  bell,  or  run  his  noisy  nia- 
chinery.  or  whether  the  noise  will  be  a  pri- 
vate nuisance  to  the  occupant  of  a  housp 
near  b^',  it  is  necessary'  to  ascertain  the 
natural  and  probable  effect  of  the  sound 
upon  ordinary  persons  in  that  house, — 
not  how  it  will  affect  a  i)articular  person 
who  hai^pens  to  be  there  to-day,  or  who 
may  chance  to  come  to-morrow.  Fay  v 
"Whitman.  100  Mass.  7G;  Davis  v.  Sawyer, 
133  Mass.  2S9;  Walter  v.  Selfe,  4  De  Gex  & 
S.  3::3;  Soltau  v.  De  Held,  2  Sim.  (N.  S.) 
133;  Smelting  Co.  v.  Tipping,  11  H.  L. 
Cas.  642.  In  Walter  v.  Selfe,  Vice-Cliancel- 
lor  Knight  Biuce,  after  elal.'orating  his 
statement  of  the  rule,  concludes  as  fol- 
lows: "Thej'  have,  I  think,  established 
that  the  defendant's  intended  ])roceeding 
will,  if  prosecuted,  abridge  and  diminish 
seriously  and  materially  the  ordinary 
CHASE — 12 


comfort  of  existence  to  the  occupier  and 
inmates  of  the  plaintiff's  house,  whatever 
their  rank  or  station,  whatever  their  age 
or  state  of  health."  It  is  said  by  Lord 
RoMiLLY,  master  of  the  rolls,  in  Crump  v. 
Lambert,  L.  K.  3  Eq.  40S.  that  "the  real 
question  in  all  the  cases  is  the  question  of 
fact,  viz.,  whether  the  nuisance  is  such  as 
materially  to  interfere  with  the  ordinary 
comfort  of  human  existence."  Inthe  opin- 
ion in  Sparhawk  v.  Kail  way  Co..  54  Pa. 
St.  401,  these  words  are  used:  "It  seems 
to  me  that  the  rule  expressed  in  the  cases 
referred  to  is  the  only  true  one  in  judging 
of  injuries  from  alleged  nuisances,  viz., 
such  as  naturally  and  necessarily  result 
to  all  alike  who  come  within  their  influ- 
ence."  In  the  case  of  Westcott  v.  Middle- 
ton,  43  N.  J.  Eq.  478.  11  Atl.  Rep.  490,  (de- 
cided December  9,  1887,)  it  appeared  that 
the  defendant  carried  on  the  business  of 
an  undertaker,  and  the  windows  of  the 
plaintiff's  house  looked  out  upon  hisj-ard, 
where  boxes  which  had  been  used  to  pre- 
serve the  bodies  of  the  dead  were  frequent- 
ly washed,  and  where  other  objects  were 
visible,  and  other  work  was  going  on, 
which  affected  the  tender  sensibilities  of 
the  plaintiff,  and  caused  him  great  dis- 
comfort. Vice-Chancellor  Bird,  in  dis- 
missing the  bill  for  an  injunction  against 
carrying  on  the  business  there,  said: 
"The  inquiry  iupvitably  arises,  if  a  decis- 
ion is  rendered  in  Mr.  Westcott's  favor 
because  he  is  so  morally'  or  mentally 
constituted  that  the  particular  business 
comi)lained  of  is  an  offense  or  a  nuisance 
to  him,  or  destructive  to  his  comfort,  or 
his  enjoyment  of  his  home,  how  many 
other  cases  will  arise  and  claim  the  bene- 
fit of  the  same  principle,  however  different 
the  facts  may  be,  or  whatever  may  be  the 
mental  condition  of  the  party  complain- 
ing? *  *  *  A  wide  range  has  indeed 
been  given  to  courts  of  equity,  in  dealing 
with  these  matters,  but  I  can  find  no  case 
where  the  court  has  extended  aid,  unless 
the  act  complained  of  was,  as  1  have 
above  said,  of  a  nature  to  affect  all  rea- 
sonable persons,  similarly  situated,  alike.  " 
If  one's  right  to  use  his  property  were  to 
depend  upon  the  effect  of  the  use  upon  a 
person  of  peculiar  temperament  or  dispo- 
sition, or  upon  one  suffering  from  an  un- 
common disease,  the  standard  for  measur- 
ing it  would  be  so  uncertain  and  fluctuat- 
ing as  to  paralyze  industrial  entf>rprises. 
The  owner  of  a  factory  containing  noisy 
machinery,  with  dwelling-houses  all 
about  it,  might  find  his  business  lawful  as 
to  all  but  one  of  the  tenants  of  the  houses, 
and  as  to  that  one,  who  dwelt  no  nearer 
than  the  others,  it  might  be  a  nuisance. 
Thecharactcrof  his  business  might  change 
from  legal  to  illegal,  or  illegal  to  legal, 
with  every  change  of  tenants  of  an  adja- 
cent estate,  or  with  an  arrival  or  deiiart- 
ure  of  a  guest  or  boartler  at  a  house  near 
by;  or  even  with  the  wakefulness  or  the 
tranquil  repose  of  an  invalid  neighbor  ou 
a  particular  night.  Legal  rights  to  the 
use  of  property  cannot  be  left  to  such  un- 
certainty. When  an  act  is  of  such  a  nat- 
ure as  to  extend  its  influence  to  those  iti 
the  vicinity,  and  its  legal  <iuality  depends 
upon  the  effect  of  tliat  influence,  it  is  as 
important    that    the    rightfulness    of  it 


178 


LAW  OF  TORTS. 


should  be  tried  by  the  experience  of  ordi- 
nary people,  as  it  is,  in  determining  a 
question  as  to  negligence,  that  the  test 
should  be  the  common  care  of  persons  of 
ordinary  prudence,  without  regard  to  the 
peculiarities  of  him  whose  conduct  is  on 
trial. 

In  the  case  at  bar  it  is  not  contended 
that  Ihe  ringing  of  the  bell  for  church 
services  in  the  manner  shown  by  the  evi- 
dence materially  affected  the  health  or 
comfort  of  ordinary  people  in  the  vicinity, 
but  the  plaintiff's  claim  rests  upon  the  in- 
jury done  him  on  account  of  his  peculiar 
condition.  However  his  request  should 
have  been  treated  by  the  defendant  upon 


considerations  of  humanity,  we  think  he 
could  not  put  himself  in  a  place  of  expos- 
ure to  noise,  and  demand  as  of  legal  right 
that  the  bell  should  not  be  used.  The 
plaintiff,  in  his  brief,  concedes  that  there 
was  no  evidence  of  express  malice  on  the 
part  of  the  defendant,  but  contends  that 
malice  was  implied  in  his  acts.  In  the  ab- 
sence of  evidence  that  he  acted  wantonly, 
or  with  express  malice,  this  implication 
could  not  come  from  his  exei'cise  of  his  le- 
gal rights.  How  far,  and  under  what 
circumstances,  malice  may  be  material  in 
cases  of  this  kind,  it  is  unnecessary  to  con- 
sider. 
Judgment  on  the  verdict. 


(See,  also,  Davis  v.  Sawyer,  133  Mass.  289;  Soltau  v.  De  Held,  2  Sim.  (N.  S.)  133;  McKeon  v.  See, 
51  N.  Y.  300;  Fish  v.  Dodge,  4  Denio,  311.) 


5.  Keeping  dangerous  substances. 


(80  N.  Y.  579.) 

Heeg  v.  Light. 

(Cowrt  of  Appeals  of  New  York.    April  6, 1880. ) 

Nuisance — Keeping  Gunpowder. 

The  mere  keeping  of  gunpowder  in  dangerous 
proximitj'^tothe  premises  of  another  is  a  nuisance, 
rendering  the  person  keeping  it  liable  for  injuries 
caused  by  its  explosion,  irrespective  of  the  ques- 
tion of  his  negligence. 

Appeal  from  supreme  court,  general 
term,  second  department. 

Action  by  Frank  Heeg  against  Philip 
Licht  to  recover  damages  for  injuries  to 
plaintiff's  buildings  alleged  to  have  been 
caused  by  the  explosion  of  a  powder 
magazine  on  defendant's  premises,  and 
for  an  injunction  to  restrain  defendant 
from  manufacturing  and  storing  upon 
his  premises  fire-works  and  other  explo- 
sive substances.  A  verdict  was  rendered 
for  defendant,  and  the  judgment  entered 
thereon  was  affirmed  on  appeal  to  the 
general  term.  From  the  judgment  of  the 
general  term  plaintiff  appealed. 

Philip  .S.  Crooke,  for  appellant.  Benja- 
min F.  Downing,  for  respondent. 

MiM.ER,  J.  This  action  is  sought  to  be 
maintained  upon  the  ground  that  the 
manufacturing  and  storing  of  fire-works, 
and  the  use  and  keeping  of  materials  of  a 
dangerous  and  explosive  character  for  that 
purpose,  constituted  a  private  nuisance, 
for  which  the  defendant  was  liable  to  re- 
spond in  damages,  without  regard  to  the 
question  whetiier  lie  was  chargeable  with 
carelessness  or  negligence.  The  defendant 
had  constructed  a  powder  magazine  upon 
his  premises,  with  the  usual  safeguards, 
in  which  he  kept  stored  a  quantity  of 
powder,  which,  without  any  apparent 
cause,  exploded,  and  caused  the  injury 
complained  of.  The  judge  upon  the  trial 
charged  the  jury  that  they  must  find  for 
the  defendant,  unless  they  found  that  the 
defendant  carelessly  and  negligently  kept 
the  gunpowder  upon  his  pi'emises.  The 
judge  refused  to  charge  that  the  powder 
magazine  was  dangerous  in  itself  to  plain- 
tiff and  his  property,  and  was  a  private 
uuisauce,  and  the  defendant  was  liable  to 


the  plaintiff,  whether  it  was  carelessly 
kept  or  not;  and  the  plaintiff  duly  ex- 
cepted to  the  charge  and  the  refusal  to 
charge. 

We  think  that  the  charge  made  was  er- 
roneous, and  not  warranted  by  the  facts 
presented  upon  the  trial.  The  defendant 
had  erected  a  building,  and  stored  materi- 
als therein,  which  from  their  character 
were  liable  to  and  actually  did  explode, 
causing  injury  to  the  plaintiff.  The  fact 
that  the  explosion  took  place  tends  to  es- 
tablish that  the  magazine  was  dangerous, 
and  liable  to  cause  damage  to  the  proper- 
ty of  persons  residing  in  the  vicinity.  The 
locality  of  works  of  this  description  must 
depend  upon  the  neighborhood  in  which 
they  are  situated.  In  a  city,  with  build- 
ings immediately  contiguous,  and  persons 
constantly  passing,  there  could  be  no 
question  that  such  an  erection  would  be 
unlawful  and  unauthorized.  An  explo- 
sion, under  such  circumstances,  independ- 
ent of  any  municipal  regulations,  would 
render  the  owner  amenable  for  all  dam- 
ages arising  therefrom.  That  the  defend- 
ant's establishment  was  outside  of  the  ter- 
ritorial limits  of  a  city  does  not  relieve  the 
oAvner  from  responsibility  or  alter  the 
case,  if  the  dangerous  erection  was  in 
close  contiguit.y  with  dwelling-houses  or 
buildings  which  might  be  injured  or  de- 
stroyed in  case  of  an  explosion.  The  fact 
that  the  magazine  was  liable  to  such  con- 
tingency, which  could  not  be  guarded 
against  or  averted  by  the  greatest  degree 
of  care  and  vigilance,  evinces  its  danger- 
ous character,  and  might  in  some  locali- 
ties render  it  a  [)rivate  nuisance.  In  such 
a  case  the  rule  which  exonerates  a  party 
engaged  in  a  lawful  business,  when  free 
from  negligence,  has  no  application.  The 
keeping  or  manufacturing  of  gunpowder 
or  of  fire-works  does  not  necessarily  con- 
stitute a  nuisance  per  se.  That  depends 
upon  the  locjility,  the  quantity,  and  the 
surrounding  circumstances,  and  not  en- 
tirely upon  the  degree  of  care  used.  In 
the  case  at  bar  it  should  have  been  left 
for  the  jury  to  determine  whether,  from 
the  dangerous  character  of  the  defend- 
ant's   business,   the   proximity    to  othei 


NUISANCE. 


179 


buildings,  and  all  the  facts  proved  upon 
the  trial,  the  defendant  was  chargeable 
with  maintaining  a  private  nuisance  and 
answerable  for  the  daiuages  arising  from 
the  explosion. 

A  private  nuisance  is  defined  to  be  any- 
thing done  to  the  hurt  or  annoyance  of 
the  lands,  tenements,  or  hereditaments  of 
another.  3  Bi.  Coram.  216.  Any  unwar- 
rantable, unreasonable,  or  unlawful  use 
b3'  a  person  of  his  own  property,  real  or 
personal,  to  the  injury  of  another,  comes 
within  the  definition  stated,  and  renders 
the  owner  or  possessor  liable  for  damages 
arising  from  such  use.  Wood,  Nuis.  §  1, 
and  authorities  cited.  The  cases  which 
are  regarded  as  private  nuisances  are  nu- 
merous, and  the  bo(jks  are  full  of  decis- 
ions holding  the  parties  answerable  for 
the  injuries  which  result  from  their  being 
maintained.  The  rule  is  of  universal  ap- 
plication that,  while  a  man  may  prose- 
•cute  such  business  as  he  chooses  on  his 
own  premises,  he  has  no  right  to  erect 
and  maintain  a  nuisance  to  tlie  injury  of 
an  adjoining  proprietor,  or  of  his  neigh- 
bors, even  in  the  pursuit  of  a  lawful  trade. 
Aldred's  Case,  9  Coke,  58;  Brady  v.  Weeks, 
S  Barb.  159;  Dubois  v.  Budlong.  15  Abb, 
Pr.  445;  Wier's  Appeal,  74  Pa.  St.  230. 

While  a  class  of  the  reported  cases  relates 
to  the  prosecution  of  a  legitimate  busi- 
ness, which  of  itself  produces  inconven- 
ience and  injury  to  others,  another  class 
refers  to  acts  done  on  the  premises  of  the 
owner,  which  are  of  themselves  danger- 
ous to  the  property  and  the  persons  of  oth- 
ers who  may  reside  in  the  vicinity,  or  who 
may  by  chance  be  passing  along  or  in  the 
neighborhood  of  the  same.  Of  the  for- 
mer class  are  cases  of  slaughter-houses, 
fat  and  offal  boiling  establishments,  hog 
styes,  or  tallow  manufactories,  in  or  near 
a  city,  which  are  offensive  to  the  senses, 
and  render  the  enjoyment  of  life  and  prop- 
■erty  uncomfortable.  Catlin  v.  Valentine,  9 
Paige.  575;  Brady  v.  Weeks,  3  Barb.  157: 
Dubois  V.  Budlong,  15  Abb.  Pr.  445;  Rex 
V.  White,  1  Burrows.  337;  2  Bl.  Comm.215; 
Farrand  v.  Marshall,  21  Barb.  421.  It  is 
not  necessary  in  these  cases  that  the  nox- 
ious trade  or  business  should  endanger  the 
health  of  the  neighborhood.  So,  also,  the 
use  of  premises  in  a  manner  which  causes 
a  noise  so  continuous  and  excessive  as  to 
produce  serious  annoyance,  or  vapors  or 
noxious  smells,  (Tipping  v.  Smelting  Co., 
4  Best  &  S.  60S;  Brill  v.  Flagler,  23  Wend. 
354;  Pickard  v.  Collins,  23  Barb.  444; 
Wood,  Nuis.  §  5;)  or  the  burning  of  a 
brick-kiln  from  wliich  gases  escape  which 
injure  the  trees  of  persons  in  the  neigh- 
borliood,  ((Campbell  v.  Seaman,  63  N.  Y. 
.56S.)  Of  the  latter  class,  also,  are  those 
where  the  owner  blasts  rocks  with  gun- 
powder, and  the  fragments  are  liable  to 
be  thrown  on  the  premises,  and  injure  the 
adjoining  dwelling-houses,  or  the  owner 
•or  persons  there  being,  or  where  persons 
traveling  may  be  injured  by  such  use. 
Hay  V.  Cohoes  Co.,  3  Barb.  42,  2  N.  Y.  1.59; 
Tremain  v.  Cohoes  Co.,  2  N.  Y.  163;  Pix- 
ley  V.  Clark.  35  N.  Y.  523.  Most  of  the  cases 
cited  rest  upon  the  maxim,  sic  ntcre  tvo, 
etc.:  and,  where  the  right  to  the  undis- 
turbed possession  and  enjoyment  of  prop- 
erty comes  in   conflict  with   the  rights  of 


others,  that  it  is  better,  as  a  matter  of 
public  policy,  that  a  single  individual 
should  surrender  the  use  of  his  land  for 
especial  purposes  injurious  to  his  neigh- 
l)or  or  to  others,  than  that  the  latter 
should  be  deprived  of  the  use  of  their 
property  altogether,  or  be  subjected  to 
great  danger,  loss,  and  injurj-,  which 
might  result  if  the  rights  of  the  former 
were  without  any  restriction  or  re- 
straint. 

The  keeping  of  gunpowder  or  other  ma- 
terials in  a  place,  or  under  circumstances, 
where  it  would  be  liable,  in  case  of  explo- 
sion, to  injure  the  dwelling-houses  or  the 
persons  of  those  residing  in  close  proximity, 
we  think  rests  upon  the  same  principle, 
and  is  governed  l)y  the  same  general  rules. 
An  individual  has  no  more  right  to  keep 
a  magazine  of  powder  upon  his  premises, 
which  is  dangerous,  to  the  detriment  of 
his  neighbor,  than  he  is  authorized  to  en- 
gage in  any  other  business  which  may  oc- 
casion serious  consequences. 

The  counsel  for  the  defendant  relies  upon 
the  case  of  People  v.  Sands,  1  Johns.  7n,  to 
sustain  the  position  that  the  defendant's 
business  was  neither  a  puljlic  nor  a  pri- 
vatenuisance.  That  was  an  indictment  for 
keeping  a  quantity  of  gunpowder  near 
dwelling-houses,  and  near  a  public  street; 
and  it  was  held  (Spencer,  J.,  dissenting) 
that  the  fact  as  ciiarged  did  not  amount  to 
a  nuisance,  and  that  it  should  have  Ijeen 
alleged  to  have  been  negligently  and  im- 
providently  kept.  It  will  be  seen  that  the 
case  was  disposed  of  upon  the  form  of  the 
indictment,  and,  while  it  may  well  be 
that  an  allegation  of  negligence  is  necessa- 
ry where  an  indictment  is  for  a  public  nui- 
sance, it  by  no  means  follows  that  negli- 
gence is  essential  in  a  private  action  to  re- 
cover damages  for  an  alleged  nuisance. 
In  Myers  v.  Malcolm,  6  Hill,  292,  it  was 
held  that  the  act  of  keeping  a  large  quan- 
tity of  gunpowder,  insufficiently  secured, 
near  other  buildings,  thereby  endangering 
the  lives  of  persons  residing  in  the  vicini- 
ty, amounted  to  a  public  nuisance,  and 
an  action  would  lie  for  damages  where  an 
explosion  occurred  causing  injury.  Nel- 
son, C.  J.,  citing  I'eople  v.  Sands,  supra, 
saj-s  :  "Upon  the  principle  that  nothing 
will  be  intended  or  inferred  to  supi)ort  an 
indictment,  the  court  said,  for  auglit  they 
could  see.  the  house  may  have  been  one 
built  and  secured  for  the  purpose  of  keep- 
ing powder  in  such  a  way  as  not  to  ex- 
pose the  neighborhood  ;"  and  he  cites  sev- 
eral authorities  which  uphold  the  doctrine 
that,  where  gunpowder  is  kept  in  such  a 
place  as  is  dangerous  to  the  inhabitants 
or  passengers,  it  will  be  regarded  as  a  nui- 
sance. The  case  of  People  v.  Sands  is  not, 
therefore,  controlling  upon  the  question 
of  negligence.  Fillo  v.  Jones,  2  Abb. 
Dec.  121,  is  also  relied  upon,  but  does  not 
sustain  the  doctrine  contended  for;  and 
it  is  there  held  that  an  action  for  dam- 
ages caused  by  the  explosion  of  fire-works 
may  be  maintained  upon  the  theory  that 
the  defendant  was  guilty  of  a  wrongful 
and  unlawful  act,  or  of  default,  in  keep- 
ing them  at  the  place  they  were  kept,  be- 
cause they  were  liable  to  spontaneous 
combustion  and  explosion,  and  thus  en- 
dangered the  lives  of  persons  in  their  vi- 


180 


LAW  OF  TORTS. 


cinity,  and  that  the  injury  was  occasioned 
by  such  spontaneous  combustion  and  ex- 
plosion. 

It  is  apparent  that  nesiligence  alone  in 
the  keeping  of  gunpowder  is  not  control- 
ling, and  that  the  danger  arising  from  the 
locality  where  the  fire-works  or  gunpow- 
der are  kept  is  to  be  taken  into  consider- 
ation  in   maintaining  an    action   of   this 


character.  We  think  that  the  request  to 
charge  was  too  broad,  and  properly  re- 
fused. The  charge,  however,  should  have 
been  in  conformity  with  the  rule  herein 
laid  down,  and,  for  the  error  of  the 
judge  in  the  charge,  the  judgment  should 
be  reversed,  and  a  new  trial  granted,  with 
costs  to  abide  the  event.  All  concur. 
Judarment  reversed. 


(See,  also,  Wier's  Appeal,  74  Pa.  St.  230;  McAndrews  v.  Collerd,  43  N.  J.  Law,  189;  Com.  v.  Kid- 
der, 107  Mass.  188.) 


6.  Obstruction  of  highway. 

(18  N.  Y.  79.) 

CoNGREVE  V.  Smith  et  al. 

(Court  of  Appeals  of  New  YorTi.    Sept.,  1858.) 

1.  Highways — Excavation  under  Sidewalk. 
Persons  who,  without  authority,  make  or  con- 
tinue a  covered  excavation  in  a  public  street  or 
highway  for  a  private  purpose  are  liable  for  all 
injuries  to  individuals  resulting  from  the  street 
or  highway  being  thereby  less  safe  for  its  appro- 
priate use,  irrespective  of  the  question  of  negli- 
gence. 

2.  Same— Independent  Contkactors  — Continu- 

ing Nuisance. 
That  the  injuries  were  caused  by  the  negli- 
gence, in  covering  the  excavation,  of  ser\'ants  of 
contractors  for  that  work,  who  had  contracted  to 
do  it  properly,  does  not  relieve  from  liability  the 
persons  who  procured  it  to  be  done,  and  did  not 
object  to  it,  and  continued  the  excavation  in  its 
unsafe  condition,  they  being  bound,  at  their 
peril,  to  make  and  at  all  times  keep  the  street  as 
safe  as  it  would  have  been  if  the  excavation  had 
not  been  made. 

Appeal  from  superior  court  of  New  York 
city,  general  term. 

Action  by  Congreve  against  Smith  and 
another  for  personal  injuries  caused  by  the 
breaking  of  a  flag-stone,  over  an  area  in 
the  street  in  front  of  defendants'  prem- 
ises, while  plaintiff  was  traveling  thereon. 
The  area  was  built  under  tiie  sidewalk 
outside  the  lot-line  in  the  street  proper, 
and  the  tlag-walk  was  laid  over  the  same 
by  persons  who  erected  the  adjoining 
building  and  the  area  under  contract  with 
defendant  owners.  Defendants  sought  to 
escape  liability  on  the  ground  that  tlie 
persons  who  built  the  area  and  walk  were 
independent  contractors,  skillful  mechan- 
ics, and  were  required  by  their  contract  to 
build  the  same  in  a  skillful  manner,  using 
the  best  of  materials;  but  the  court 
charged  that  defendants  were  liable  in  the 
same  manner  as  their  contractors  would 
have  been,  and  the  question  was  whether 
the  stone  was  such  as  a  prudent  and  skill- 
ful mechanic  would  have  used,  to  which 
defendants  excepted.  The  jury  rendered 
a  verdict  for  plaintiff  for  ^CiO.  The  judg- 
ment entered  thereon  was  affirmed  by  the 
general  term.  From  the  judgment  of  the 
general  term  defendants  appealed. 

Dusenbury  &  Van  Wagoner,  for  appel- 
lants. Morrison  &  Browae,  for  respond- 
ent. 

Strong,  J.  The  verdict  of  the  jury,  un- 
der the  instructions  given  them  by  the 
court,  involves  the  finding  that  the  stone 
covering  the  area  was  unsuitable  and  un- 
safe for  that  purpose,  wherefore  it  broke, 
and  the  plaintiff  received  theiujury  in  ques- 


tion. The  area  was  under  the  surface  of 
the  public  street,  and  was  maintained  for 
the  benefit  of  the  property  of  the  defend- 
ants, and  the  stone  was  placed  over  it  un- 
der contractors  with  the  defendants  for 
the  completion  of  the  defendants'  build- 
ing, in  pursuance  of  the  contract.  No 
license  from  the  city  for  the  area  was 
proved. 

It  certainly  is  just  that  persons  who, 
without  special  authority,  make  or  con- 
tinue a  covered  excavation  in  a  public 
street  or  highway,  for  a  private  purpose, 
should  be  responsible  for  all  injuries  to  in- 
dividuals resulting  from  the  street  or  high- 
way being  thereby  less  safe  for  its  appro- 
priate use,  there  being  no  negligence  by  the 
I)arties  injured  ;  and  I  entertain  no  doubt 
that  a  liability  to  that  exent  is  imposed 
on  them  by  law.  Such  is  clearly  the  legal 
responsibility  for  placing  objects  upon  the 
surface  of  the  ground,  obstructing  the  full 
and  free  enjoyment  of  the  easement ;  and 
there  does  ncjt  appear  to  be  any  distinc- 
tion in  principleas  to  the  liability  of  a  par- 
ty for  nn  act  making  the  use  of  the  ease- 
ment dangerous,  arising  from  the  mode  in 
which  it  is  done,  wliether  by  objects  upon 
or  over  the  surface,  which  may  be  run  up- 
on or  against,  or  by  holes  in  the  earth  in- 
to which  persons  may  fall.  Tlie  general 
doctrine  is  that  the  public  are  entitled  to 
the  street  or  highway  in  the  condition  in 
which  they  placed  it;  and  whoever,  with- 
out special  authority,  materially  obstructs 
it,  or  renders  its  use  hazardous,  by  doing 
anytliing  upon,  above,  or  below  the  sur- 
face, is  guilty  of  a  nuisance;  and.  as  in  all 
other  cases  of  public  nuisance,  individu- 
als sustaining  special  damage  from  it, 
without  any  want  of  due  care  to  avoid 
injuiT.havea  remedy  by  action  against 
the  author  or  person  continuing  the  nui- 
sance. No  question  of  negligence  can 
arise,  the  act  being  wrongful.  It  is  as 
much  a  M'rong  to  impair  the  safety  of  a 
street  by  undermining  it  as  by  placing  ob- 
jects upon  it.  Tiiere  can  be  no  difference 
in  regard  to  the  nature  of  the  act  or  the 
rule  of  liabilitj',  whether  the  fee  of  the 
land  within  the  limits  of  the  easement  is 
in  a  municipal  corporation  or  in  him  by 
whom  the  act  complained  of  was  done; 
in  either  case,  the  act  of  injuring  the  ease- 
ment is  illegal. 

The  case  of  Dygert  v.  Schenck,  23  Wend. 
44G,  appears  to  be  directly  in  point.  In 
that  case  it  was  held  that  the  defendant, 
who  had  dug  a  race-way  across  a  public 
road,  over  his  own  land,  to  conduct  wa- 
ter to  his   mill,  and   built  a  bridge  across 


NUISANCE. 


181 


it,  was  liable  for  an  injury  sustained  in 
consciiiicnce  of  the  bridge  being  out  of  re- 
pair. The  court,  by  Cowen,  J.,  said  that, 
in  suffering  the  bridge  to  become  unsafe, 
"  the  defendant  came  short  of  his  obliga- 
tion to  the  pulilic.  Any  act  of  an  individ- 
ual done  to  tlie  highway, if  it  detractfrom 
the  safety  of  travelers,  is  a  nuisance." 
And  again:  "Special damage  arising  from 
it,  therefore,  furnishes  ground  for  private 
action,  without  regard  to  the  question  of 
negligence  in  him  who  digs  it.  Tiie  ut- 
most care  to  prevent  mischief  will  not  pro- 
tect him,  if  the  injury  happen  without 
gross  carelessness  on  the  i)art  of  the  suf- 
ferer. " 

It  is  no  answer  to  tlie  present  action 
that  the  covering  of  the  area  was  done  un- 
der the  contractors,  who  had  contracted 
to  do  the  work  properly,  and  that  the  de- 
fendants are  not  responsible  for  the   negli- 


gence of  the  contractors'  servants.  The 
act  was  that  of  the  defendants.  They  pro- 
cured it  to  be  done,  and  do  not  appear  to 
have  objected  to  it.  Besides,  the  action 
may  well  stand  on  the  basis  of  continuing 
the  area  and  the  stone  covering  it,  tiiey 
making  the  easement  unsafe,  compared 
with  what  it  otherwise  would  have  been. 
That  is  a  sufficient  ground  of  liability. 
The  defendants  were  bound,  at  their  peril, 
to  make,  and  at  all  times  keep,  the  street 
as  safe  as  it  would  have  been  if  the  area 
had  not  been  constructed.  The  defend- 
ants, therefore,  have  no  ground  for  com- 
plaint with  any  of  the  rulings  at  the  trial, 
or  of  the  charge  to  the  jury,  and  the  judg- 
ment should  be  affirmed. 


Sei.den,  J.,  was  absent, 
judges  concurred. 
Judgment  affirmed. 


All  the  other 


(See,  also,  Callanan  v.  Gilman,  107  N.  Y.  360,  14  N.  E.  Rep.  264;  Cohen  v.  Mayor,  etc.,  113  N.  Y. 
532,  21  N.  E.  Rep.  700;  Marine  Ins.  Co.  v.  St.  Louis,  etc.,  R.  Co.,  41  Fed.  Rep.  643;  Clifford  v.  Dam.  81 
N.  Y.  52;  Calder  v.  Smalley,  66  Iowa,  219,  23  N.  W.  Rep.  638.) 


III.  WHO  RESPONSIBLE. 


aOS  Pa.  St.  489.) 

Fow  V.  Roberts. 

{Supreme  Court  of  Pennsylvania.     March  9, 
1885.) 

Nuisance — Who  Liable — Landlokd  and  Tenant. 
Where  a  cess-pool  is  so  constructed  by  the  owner 
of  the  premises  that  the  offensive  matter  deposit- 
ed therein  by  his  tenants  necessarily  percolates 
through  to  the  adjoining  premises,  the  owner  is 
equally  liable  with  the  tenants  for  the  injury  to 
the  adjoining  occupant. 

Error  to  the  court  of  common  pleas  No. 
2  of  Philadelphia  county,  of  July  term, 
18S4,  No.  17. 

Action  on  the  case  by  George  Fow 
against  Elizabeth  Roberts.  On  the  trial 
it  appeared  that  a  cess-pool  on  defend- 
ant's premises  was  constructed  within  a 
foot  of  the  cellar  wall  on  the  adjoining 
premises  owned  and  occupied  by  plaintiff; 
that  defendant's  premises  were  three 
houses,  rented  to  tenants,  all  of  whom 
had  the  use  of  such  cess-pool ;  that  when 
the  offensive  matter  depcjsited  therein  by 
the  tenants  rose  to  the  height  of  the 
plaintiffs'  cellar  floor  it  percolated 
through,  and  rendered  his  premises  un- 
inhabitable. The  trial  court  held  that  the 
tenants  alone  were  liable,  and  nonsuited 
XJlaintiff;  whereupon  plaintiff  sued  out 
this  writ  of  error,  assigning  as  error  the 
entry  of  the  nonsuit,  and  a  subsequent  re- 
fusal to  take  it  off. 

Argued  before  Mercur,  C.  J.,  Paxson, 
Trinkey,  Sterrett,  Green,  and  Clark, 
JJ.;  Gordon,  J.,  absent. 

John  H.  Fow  and  Edward  A.  Anderson, 
for  plaintiff  in  error.  Bradbury  Bedell 
and  Fred'k  B.  Vogel,  for  defendant  in  er- 
ror. 

Paxson,  J.  It  needs  but  o  cursory  ex- 
amination of  the  evidence  in  thiscasetosee 
that  the  privy-well  complained  of  was  a 
nuisance  of  the  most  offensive  character. 
It  was   situated   but    one  foot  from   the 


line  which  divided  the  property  of  the 
plaintiff  from  that  of  the  defendant,  and 
when  filled  to  a  certain  point  the  filthy 
matter  percolated  through  the  wall  into 
the  plaintiff's  cellar.  Indeed,  there  ap- 
pears to  have  been  little  dispute  at  the 
trial  below  either  as  to  the  existence  of 
the  nuisance  or  its  character.  The  main 
question  was,  who  was  liable  therefor, 
the  tenant  in  possession,  or  the  landlord 
who  had  demised  the  premises  with  the 
privy  located  as  above  described?  The 
suit  was  against  the  landlord  for  main- 
taining the  nuisance.  The  court  below 
nonsuited  the  plaintiff,  upon  the  ground 
that  the  tenant  was  alone  liable. 

The  defendant  contended  that  the  well 
was  not  perse  a  nuisance;  that  when  she 
leased  the  property  to  the  present  tenant, 
in  1879,  no  complaint  had  been  made  of 
the  well,  and  that  it  had  become  a  nui- 
sance by  the  manner  of  its  use  by  the  ten- 
ants; that  they  had  allowed  it  to  be  used 
by  two  or  three  families,  and  had  neglect- 
ed to  have  it  cleaned  at  the  proper  time. 

The  law  upon  this  subject  was  correct- 
ly stated  in  the  recent  case  of  Knauss  v. 
Brua,  decided  at  the  last  term  in  the  mid- 
dle district,  (107  Pa.  St.  85,)  where  it  was 
said  by  our  Brjjther  Gordon  :  "  We  do  not 
doubt  but  that,  in  the  absence  of  an  agree- 
ment to  repair,  the  landlord  is  not  liable 
to  a  third  part}'  for  a  nuisance  resulting 
from  di)ai)idation  in  the  leasehold  prem- 
ises while  in  the  possession  of  a  tenant. 
To  make  the  lessor  so  liable,  the  effect 
must  be  one  that  arises  necessarily  from  a 
continuance  of  the  use  of  the  property  as 
it  was  when  the  tenant  took  possession 
of  it.  But  the  con  verse  of  this  proposition 
is  also  true;  if  the  premises  are  so  ccjn- 
structed.  or  in  such  a  condition,  that  the 
continuance  of  theii'  use  by  the  tenant 
must  result  in  a  nuisance  to  a  third  per- 
son, and  a  nuisance  does  so  result,  the 
landhjrd  is  liable. " 

Applying  this   principle    to    the  case   in 


182 


LAW  OF  TORTS. 


hand,  it  is  too  clear  for  jirgument  that 
the  tenant  woulrl  be  responsible  to  the 
plaintiff  for  the  flow  of  the  offensive  mat- 
ter upon  the  premises  of  the  latter.  He  is 
responsible  for  the  reason  that  the  act 
complained  of  is  his.  The  filth  was  de- 
posited there  by  himself,  his  family,  or  by 
others  whom  he  permitted  to  use  ths 
privy. 

Is  the  landlord  also  liable?  We  are  not 
considering  any  question  for  liability  of 
repairs,  as  between  landlord  and  tenant. 
It  does  not  arise  necessarily  in  the  case. 
But  if  the  landlord  constructed  or  main- 
tained his  privy  in  such  position,  as  re- 
gards his  neighbor's  property,  that  its 
use  would  result  in  a  nuisance  to  the  lat- 
ter, and  demised  it  to  a  tenant,  we  are  of 
opinion  that  he  is  responsible  for  the  con- 
sequences of  its  use.  The  privy,  as  before 
stated,  was  within  one  foot  of  the  plain- 
tiffs' cellar  wall.  A  property  owner  who 
80  locates  a  privy  on  his  premises  ought 
to  know  that  it  may,  and  probably  will, 
become  a  nuisance.  To  build  a  cess-pool 
now  within  two  feet  of  the  line  of  any  ad- 
joining lot  would  be  a  violation  of  a  city 
ordinance,  and  it  is  a  violation  of  said  or- 
dinance to  maintain  a  cess-pool  within 
said  limits.  The  reason  for  this  wise  mu- 
nicipal regulation  undoubtedly  is  that 
cess-pools  so  constructed  are  nuisances, 
and  endanger,  not  only  the  comfort,  but 
the  health,  of  citizens. 

The  defendant  having  demised  the 
premises  in  question  to  a  tenant  with  a 
cess-pool  so  situated  thereon  that  its  use 
must  necessarily  result  in  a  nuisance  to 
the  plaintiff,  we  are  of  opinion  that  she  is 
liable  to  the  plaintiff.  It  was  urged,  how- 
ever, that  it  was  only  for  the  manner  of 
its  use  that  the  well  became  a  nuisance. 
We  fail  to  see  the  force  of  this  reasoning. 
The  cess-pool  was  used  for  the  very  pur- 
pose for  which  it  was  constructed,  and 
the  tenant  had  the  right  to  use  it.  We 
cannot  measure  the  extent  to  which  a 
cess-pool  may  be  lawfully  used.  Its  law- 
ful use  in  this  case  resulted  in  a  nuisance 
to  the  plaintiff.  The  defendant  demised 
the  premises,  with  the  cess-pool  so  locat- 
ed that  it  would  naturally  produce  such 
a  result,  and  for  the  result  we  must  hold 
her  to  be  liable. 

The  judgment  is  reversed,  and  a  proce- 
dendo is  awarded. 


(3  Allen,  264.) 

McDoNouGH  V.  Oilman. 

{Supreme  Judicial  Court  of  Massachusetts. 
Nov.  Term,  1861.) 

1.  Nuisance — Who  Liable — Landlord  and  Ten- 

ant. 
A  tenant  for  years,  who  restores  a  nuisance  to 
a  right  oi  way  after  the  same  has  been  abated,  is 
liable  therefor,  although  the  same  existed  before 
his  tenancy;  but  merely  repairing  it  after  it  was 
injured,  but  not  abated,  will  not  make  him  liable, 
if  it  does  not  become  more  of  a  nuisance  thereby. 

2.  Same— Continuing  Nuisance— Notice   to  Re 

MOVE. 

A  tenant  for  years  is  not  liable  for  keeping  a 
nuisance  as  it  was  used  before  his  tenancy  com- 
menced, in  the  absence  of  a  request  to  remove  it, 
if  he  does  no  new  act  of  itself  amounting  to  a 
nuisance. 


3.  Same. 

The  notice  to  a  tenant  to  remove  a  nuisance 
which  is  kept  by  him  in  the  manner  in  which  it 
existed  when  his  tenancy  commenced,  without 
any  act  on  his  part  amounting  in  itself  to  a  nui- 
sance, must  be  clear  and  unequivocal,  to  make  him 
liable  for  the  continuance. 

Exceptions  from  superior  court,  Suffolk 
county. 

Action  of  tort  by  Patrick  McDonough 
against  Oeorge  W.  Oilman  for  erecting 
and  maintaining  a  nuisance  on  plaintiff's 
right  of  way.  Verdict  was  renderefl  for 
plaintiff.     Defendant  alleged  exceptions. 

a.  H.  Hudson,  for  plaintiff.  T.  L.  Wake- 
field, for  defendant. 

Chapman,  J.  The  plaintiff's  declaration 
in  this  case  is  very  loose  and  inartificial; 
but  the  amended  count  on  which  he  relies 
states,  in  substance,  that  he  has  a  right 
of  way,  as  therein  described,  and  that  the 
defendant  has  obstructed  it  by  erecting 
and  maintaining  on  a  part  of  it  a  stair- 
case, privy,  and  vault.  On  the  trial  it  ap- 
peared that  these  structures  were  placed 
there,  not  by  the  tenant,  who  is  a  lessee 
for  years,  but  by  his  lessors;  and  that 
his  lease  contains  the  following  clause: 
"The passage-ways  around  the  said  build- 
ings [the  leased  premises]  are  reserved  by 
the  lessors,  who  hereby  lease  only  the  right 
of  such  use  thereof  as  may  be  necessary  for 
the  enjoyment  of  the  building  aforesaid." 
One  of  these  passage-ways  is  the  waj'  in 
question  ;  and  the  fee  of  the  land  is  in  the 
lessors,  subject  to  the  plaintiff's  right  of 
way.  The  privy  and  vault  existed  before 
the  defendant  became  tenant,  about  18 
years  ago.  It  does  not  appear  w^hen  the 
staircase  was  built. 

The  instruction  to  the  jury  that,  if  they 
found  the  privy  was  a  nuisance,  and  the 
plaintiff  abated  it,  and  the  defendant  re- 
stored it,  he  is  liable,  was  correct;  for  in 
such  case  the  existing  nuisance  would  have 
\  been  erected  bj'  him,  and  not  by  his  lessor. 
But  the  instruction  does  not  appear  to  be 
applicable  to  the  facts  as  reported.  It  is 
stated  that  "on  one  occasion  the  plaintiff 
commenced  beating  down  said  staircase 
with  his  axe,  when  the  defendant  re- 
strained him  therefrom;  and  on  one  oc- 
casion the  plaintiff  beat  off  the  boards 
from  said  privy,  and  the  defendent  refitted 
it."  It  is  not  stated  that  the  plaintiff  re- 
moved the  frame  of  the  privy.  He  merely 
knocked  off  the  boards,  which  would  make 
it  none  the  less  a  nuisance,  and  the  defend- 
ant merely  refitted  it,  which  did  not  make 
It  any  more  a  nuisance  than  before.  The 
act  would  be  merely  keeping  and  maintain- 
ing it,  not  erecting  it.  It  would  be  like 
the  case  of  Besvvick  v.  Cunden,  Cro.  Eliz. 
520.  In  that  case  the  declaration  alleged 
that  the  defendant  kept  and  maintained 
a  bank  by  which  a  brook  was  caused  to 
flow  around  the  plaintiff's  land.  The 
court  said :  "There  is  not  here  any  offense 
committed  l)y  the  defendant;  for  he  al- 
legeth  that  he  kept  and  maintained  a 
bank,  which  is  that  he  kept  it  as  he  found 
it;  and  it  is  not  any  offense  done  by  him, 
for  he  did  not  do  anything;  and, if  it  were 
a  nuisance  before  his  time,  it  is  not  any 
offense  in  him  to  keep  it.  "  And  the  case  is 
distinguished  from  other  cases  where  every 


iSCJISAXCE. 


183 


usinj;  is  a  new  nuisance,  as  the  using  of  an 
aqueduct  wliicii  takes  water  wrongfully 
from  another.  There  every  turnuig  of  tlie 
cock  to  let  the  water  flow  is  a  new  nui- 
sance. The  act  of  refitting  the  privy  must 
have  been  an  act  which  rendered  it  more 
a  nuisance  to  the  passage-way  than  it 
would  otherwise  have  been,  to  make  the 
defendant  liable  as  an  erector  of  the  nui- 
sance. The  act  of  the  defendant  in  re- 
straining the  ijlaintiff  from  beating  down 
the  staircase  with  an  axe  is  not  embraced 
in  this  ruling,  and  the  character  and  cir- 
cumstances of  the  act  do  not  fully  appear. 

The  other  instructions  excepted  to  were 
as  follows:  "That,  if  the  privy  and  stair- 
case were  an  obstruction  of  the  plaintiff's 
right  of  way,  then  the  tenant  is  liable  to 
an  action,  if  the  obstruction  continued, 
and  if  he  occupied  the  premises afternotice 
was  given  to  him  by  the  plaintiff  to  re- 
move the  obstructions,  although  thej'  were 
erected  by  his  landlord;  and  that  the  law 
does  not  prescribe  the  kind  of  notice  which 
should  thus  be  given  by  the  plaintiff  to  the 
defendant  to  remove  said  obstructions;" 
and  he  submitted  the  question  to  the  jury 
whether  such  notice  had  or  had  not  been 
given.  Thereport  states  all  the  evidence  of 
notice  that  was  offered,  and  it  is  as  fol- 
lows:  "The  plaintiff  complained  to  the 
defendant  of  tne  erection  of  the  staircase 
at  the  time  when  it  was  erected  ;  and  on 
another  occasion  the  plaintiff  asked  the 
defendant  how  he  thought  he  could  drive 
a  team  with  two  tons  of  coal  by  said 
stairway  to  his  house."  His  attempting 
to  beat  down  the  staircase  with  an  axe, 
and  knocking  the  boards  off  from  the 
privy,  are  not  a  notice.  The  court  are  of 
opinion  that  this  instruction  was  not 
quite  correct. 

In  Penruddock's  Case,  5  Coke,  100/>,  it 
was  resolved  that  an  action  lies  against 
one  who  erects  a  nuisance  without  au.v 
request  made  to  abate  it,  but  not  against 
tlie  feoffee,  unless  he  does  not  reform  the 
nuisance  after  request  made.  In  Wins- 
more  V.  Greenbank,  Willes,  5S;^,  Penrud- 
dock's Case  is  referred  to,  with  the  remark 
that  the  law  is  certainly  so.  In  2 Chit.  PI. 
(6th  Amer.  Ed.)  770,  note,  pleaders  are  ad- 
vised to  allege  in  the  declaration  a  special 
request  to  remove  the  nuisance  in  actions 
against  the  grantee  of  the  premises.  In 
Pierson  v.  Glean,  1  N.  J.  Law,  37,  Horn- 
BLOWER,  C.  J.,  says:  "The  law,  as  settled 
in  Penruddock's  Case, has  never,  1  believe, 
been  seriously  questioned  since."  This  ac- 
tion was  for  maintaining  a  dam  erected 
by  a  former  owner,  and  it  was  held  that 
It  could  not  be  maintained  without  a  re- 
qnest  to  reform    the   nuisance.     In  AVond- 


quest  must  be.  It  undoubtedly  must  be 
so  distinctly  and  definitely  stated  as  to 
convey  clearly  the  ground  of  the  com- 
plaint, with  a  notice  that  the  plaintiff 
will  not  longer  submit  to  the  continuance 
of  the  cause  of  the  injury."  "No  particular 
form  of  words  is  required."  This  does  not 
quite  come  up  to  the  law  of  Penruddock's 
Case.  We  think  that  there  should  be,  in 
some  unequivocal  language,  a  recjuest  to 
the  tenant  to  reform  or  remove  a  nui- 
sance, before  he  can  be  held  liable  for  its 
continuance.  It  is  not  unreasonable  to 
hold  the  plaintiff  who  proceeds  against 
the  lessee  to  this  strictness.  The  landlord 
or  grantor  himself  is  liable,  notwithstand- 
ing his  lease  or  grant,  for  the  continuance 
of  the  nuisance.  This  was  settled  in  Pkos- 
well  v.  Prior,  12  Mod.  635.  In  that  case 
the  plaintiff  had  recovered  against  the  de- 
fendant for  erecting  a  building  which 
stopped  the  plaintiff's  ancient  lights.  The 
defendant  had  granted  over  the  ground 
with  the  nuisance  to  another,  and  con- 
tended that  he  was  no  longer  liable,  but 
that  the  action  should  be  against  the  les- 
see. But  the  court  said:  "Surely  this  ac- 
tion is  well  brought  against  the  erector, 
for  before  his  assignment  over  he  was  lia- 
ble for  all  consequential  damages,  and  it 
shall  not  be  in  his  power  to  discharge  him- 
self by  granting  it  over,  and  more  espe- 
cially here,  where  he  grants  over,  reserving 
rent,  whereby  he  agrees  with  the  grantee 
that  the  nuisance  should  continue,  and 
has  a  recompense,  viz.,  the  rent  for  the 
same;  for  surely  when  one  erects  a  nui- 
sance, and  grants  it  over  in  that  manner, 
be  is  a  continuer  with  a  witness."  But 
the  tenant,  who  mei-ely  enters  upon  the 
premises  and  occupies  them  under  an  ob- 
ligation to  pay  rent  for  the  whole  and  to 
commit  no  waste,  cannot  reasonably  be 
regarded  as  a  wrong-doer  till  the  party 
injured  distinctly  and  unequivocally  com- 
plains to  him  of  the  injury,  and  informs 
him  that  he  is  expected  to  act  in  the  mat- 
ter, and  remove  it.  In  K3'pi)on  v.  Bowles, 
Cro.  Jac.  873,  it  is  said  that  Coke,C.  J.,  in- 
clined to  the  opinion  that  a  tenant  for 
years  is  not  liable  for  the  mere  occupation 
of  a  building  (u-ccted  by  his  lessor,  and 
which  obstructs  the  plaintiff's  lights,  be- 
cause his  tearing  down  the  building  would 
be  waste  as  to  his  landlord. 

In  the  present  case  the  language  proved 
does  not  amount  to  a  request,  and  the 
jury  should  have  been  so  instructed;  for, 
though  verbal  communications  are  to  be 
construed  by  the  jury  under  instructions 
from  the  court,  yet  when  a  communica- 
tion cannot,  by  any  fair  interpretation,  be 
regarded  as  a  sufficient  notice  or  request. 


man  v.  Tufts,  5)  X.  H.  92,  the  same  doctrine  t  the  jury  should  be  so  instructed  as  to  its 

Is   held,   and   the    court   proceed   to   say:    meaning. 

"And   the  question   arises,  what    chat  re- 1     Exceptions  sustained. 

(See,  also,  Sandford  v.  Clarke,  21  Q.  B.  Div.  398;  Dalay  v.  Savage,  145  Mass.  38, 12  N.  E.  Rep.  841 ; 
Ahern  v.  Steele,  115  N.  Y.  203,  22  N.  E.  Rep.  193,  which  has  a  full  review  of  the  authorities;  Joyce  v. 
Martin,  15  R.  I.  55S,  10  Atl.  Rep.  620;  Pope  v.  Boyle,  9S  Mo.  527,11  S.  W.  Rep.  1010;  Clifford  v.  Cotton- 
Mills,  146  Mass.  47,  15  N.  E.  Rep.  84;  Ingwersen  v.  Rankin,  47  N.  J.  Law,  IS.) 


184 


LAW  OF  TORTS. 


IV.  PRIVATE  INJURY  FROM  PUBLIC  NUISANCE. 


(13  Allen,  95.) 

Wesson  v.  NA'ashburn  Iron  Co. 

(Supreme  Judicial  Court  of  Massachusetts. 
Oct.  Term,  1566.) 

1.  Public  Nuisance — Special  Damage  to  Indi- 

viduals. 
Where  the  right  invaded  or  impaired  is  a  com- 
mon and  public  one,  which  every  subject  of  the 
state  may  exercise  and  enjoy,  a  mere  depriva- 
tion or  obstruction  of  the  use  which  hinders  all 
persons  alike,  and  does  not  cause  any  special  or 
peculiar  damage  to  any  one,  furnishes  no  valid 
cause  of  action  to  an  individual,  although  he 
may  suffer  inconvenience  greater  in  degree  than 
others  from  the  alleged  obstx'uction  or  hin- 
drance. But  when  the  alleged  nuisance  injures 
private  property,  or  the  health  or  comfort  of  an 
individual,  it  is  in  its  nature  special  and  pecul- 
iar, and  cannot  be  said  to  cause  a  common  or 
public  damage;  and  it  is  actionable,  though  it  is 
committed  in  a  manner  and  under  circumstances 
which  would  render  the  guilty  pax'ty  liable  to 
an  indictment  for  a  common  nuisance. 

2.  Same — Noise,  Smoke,  and  Noxious  Vapors. 
A  person  may  recover  for  injuries  to  his  prem- 
ises caused  by  noise,  smoke,  and  noxious  vapors 
in  the  operation  of  another's  rolling-mills,  though 
many  other  persons  in  the  same  neighborhood 
are  injured  in  the  same  way. 

Exceptions  from  superior  court,  Wor- 
cester county'. 

Action  by  Betsey  "Wesson  aj?ainst  the 
Washburn  Iron  Company  for  injuries  to 
plaintiff's  premises  caused  by  the  operation 
of  defendant's  rolliug-niill  and  foundry. 
It  appeared  at  the  trial  that  defendant's 
works  were  erected  in  a  proper  locality, 
and  were  properly  constructed  and  man- 
aged, but  that  the  jarring  and  noise  from 
the  machinery,  and  the  smoke,  cinders, 
dust,  and  gas  from  its  operation,  -uere  so 
great  as  materially  to  injure  plaintiffs 
premises.  Plaintiff  requested  the  court  to 
instruct  the  jury  that  if  her  dwelling- 
house  was  injured  by  jarring  and  shaking, 
and  rendered  unfit  for  habitation  by 
smolie,  cinders,  dust,  and  gas  from  defend- 
ant's works,  it  was  no  defense  to  the  ac- 
tion that  man}-  other  houses  in  tlie  neigh- 
borhood were  affected  in  a  similar  man- 
ner. But  the  judge  declined  so  to  rule, 
and  instructed  the  jury,  in  accordance 
with  defendant's  request,  that  plaintiff 
could  not  maintain  the  acticm  if  it  ap- 
peared that  the  damage  which  plaintiff 
had  sustained  in  her  estate  was  common 
to  all  others  in  the  vicinity  ;  but  it  must 
appear  that  she  had  sustained  some  spe- 
cial damage,  differing  in  kind  and  degree 
from  that  common  to  all  others  in  the 
neighborhood.  The  jury  found  a  verdict 
for  defendant.    Plaintiff  alleged  excejitions. 

G.  F.  Hoar,  (G.  F.  Verry,  witli  iiim,)  for 
plaintiff.  F.  H.  Dpwoy,  (E.  B.  Stoddard, 
with  him,)  for  defendants. 

BiGELOW,  C.  J.  *  *  »  *.  Theinterest- 
ing  question  is  to  be  considered  whether 
the  instructions  under  which  the  case  was 
submitted  to  the  jury  were  correct,  and 
appropriate  to  the  facts  in  proof.  There 
can  be  no  doubt  of  the  truth  of  the  gener- 
al principle  stated  by  the  court,  that  a 
nuisance  may  exist  which  occasions  an 
injury  to   an   individual,  for  which   an  ac- 


tion cannot  be  maintained  in  his  favor, 
unless  he  can  show  some  special  damage 
in  liis  person  or  property',  differing  in  kind 
anddegree from  that  which  is  sustained  by 
other  persons  who  are  subjected  to  incon- 
venience and  injurj'  from  tne  same  cause. 
The  difficulty  lies  in  the  application  of  this 
principle.  The  true  limit,  as  we  under- 
stand it,  within  which  its  operation  is  al- 
lowed, is  to  be  found  in  the  nature  of  the 
nuisance  which  is  the  subject  of  complaint. 
If  the  right  invaded  <jr  imjiaired  is  a  com- 
mon and  pul)lic  one,  which  every  subject 
of  the  state  may  exerci.se  and  enjoy,  such 
as  the  use  of  a  hia:hwa.y,  or  canal,  or  pub- 
lic landing  place,  or  a  common  watering 
place  on  a  stream  or  pond  of  water,  in  all 
such  cases  a  mere  deprivation  or  obstruc- 
tion of  the  use  which  excludes  or  hinders 
all  persons  alike  from  the  enjoyment  of 
the  common  right,  and  which  does  not 
cause  any  special  or  peculiar  damage  to 
any  one.  furnishes  no  valid  cause  of  ac- 
tion in  favor  of  an  individual,  although 
he  may  suffer  inconvenience  or  delay 
greater  in  degree  than  others  from  the  al- 
leged obstruction  or  hindrance.  The  pri- 
vate injury,  in  this  class  of  cases,  is  said 
to  be  merged  in  the  common  nuisance  and 
injury  to  all  citizens,  and  the  right  is  to 
be  vindicated  and  the  wrong  punished  by 
a  public  prosecution,  and  not  bj'  a  multi- 
plicity of  separate  actions  in  favor  of  pri- 
vate individuals.  Several  instances  of 
the  application  of  this  rule  are  to  be  found 
in  our  own  Reports.  Stetson  v.  Faxon.  19 
Pick.  147;  Thayer  v.  Boston,  Id.  511,  514; 
Quincy  Canal  V.  Newcorab,  7  Mete.  (Mass.) 
276,  2N3;  Holman  v.  Townsend.  13  Mete. 
(Mass.)  2U7,  299;  Smith  v.  Boston,  7  Cush. 
254;  Braiuard  v.  Railroad  Co.,  Id.  506, 511; 
Blood  v.  Railroad  Corp.,  2  Gray,  140; 
Brightman  v.  Fairhaven,  7  Gray,  271; 
Harvard  College  v.  Stearns,  15  Gray,  1; 
Willard  V.Cambridge,  3  Allen,  574;  Harts- 
horn V.  South  Reading,  Id.  501;  Fall  River 
Iron-Works  Co.  v.  Old  Colony  &  F.  R.  R. 
Co.,  5  Allen,  224. 

But  it  will  be  found  that  in  all  these 
cases,  and  in  others  in  which  the  same 
principle  has  been  laid  down,  it  has  been 
applied  to  that  class  of  nuisances  w^hich 
have  caused  a  hindrance  or  obstruction  in 
the  exercise  of  a  right  which  is  common  to 
every  person  in  the  communitj',  and  that 
it  has  never  been  extended  to  cases  where 
the  alleged  wrong  is  done  to  private  prop- 
erty, orthe  health  of  individuals  is  injured, 
or  their  peace  and  comfort  in  their  dwell- 
ings is  impaired  by  the  carrying  on  of  of- 
fensive trades  and  occupations  which  cre- 
ate noisome  smells  or  disturbing  noises, 
or  cause  other  annoyances  and  injuries  to 
persons  and  property  in  the  vicinity,  how- 
ever numerous  or  extensive  may  be  the 
instances  of  discomfort,  inconvenience, 
and  injury  to  persons  and  property  there- 
by occasioned.  Where  a  public  right  or 
privilege,  common  to  every  person  in  the 
community,  is  interrupted  or  intei'fered 
wit II,  a  nuisance  is  created  by  the  very 
act  of  interruption  or  interference,  which 
subjects  the  party  through  whose  agency 


NUISANCE. 


185 


it  is  done  to  a  public  prosecution,  although 
no  actual  injury  or  damage  may  be  there- 
by caused  to  any  one.  If,  for  example,  a 
Xniblic  way  is  obstructed,  the  existence  of 
the  ol)stiuction  is  a  nuisance,  and  punish- 
able as  such,  even  if  no  inconvenience  or 
delay  to  public  travel  actually  takes  place. 
It  would  n(jt  be  necessary,  in  a  prosecu- 
tion for  such  a  nuisance,  to  show  that  any 
one  had  been  delayed  or  turned  aside. 
The  offense  would  be  complete,  although 
during  the  continuance  of  the  obstruction 
no  one  liad  had  occasion  to  pass  over  the 
way.  The  wrong  consists  in  doing  an  act 
inconsistent  wnth  and  in  derogation  of  the 
public  or  common  right.  It  is  in  cases  of 
this  character  that  the  law  does  not  per- 
mit private  actions  to  be  maiutained  on 
proof  ujerely  of  a  disturbance  in  the  enjoy- 
ment of  the  common  right,  unless  special 
damage  is  also  shown,  distinct  not  onlj' 
in  degree,  but  in  kind,  from  that  which  is 
done  to  the  whole  public  by  the  nuisance. 

But  there  is  another  class  of  cases  in 
which  the  essence  of  the  wrong  consists  in 
an  invasion  of  private  right,  and  in  which 
the  public  offense  is  committed,  not  mere- 
ly by  doing  an  act  which causesinjury,  an- 
noyance, and  discomfort  to  one  or  several 
persons  who  may  come  within  the  sphere 
of  its  operation  or  influence,  but  by  doing  it 
in  such  place  and  in  such  manner  that  the 
aggregation  of  private  injuries  becomes  so 
great  and  extensive  as  to  constitute  a  pub- 
lic annoyance  and  inconvenience,  and  a 
wrong  against  the  community,  which  may 
be  properly  the  subject  of  a  public  prosecu- 
tion. But  it  has  never  been  held,  so  far 
as  we  know,  that  in  cases  of  this  charac 
ter  the  injury  to  private  property,  or  to 
the  health  and  comfort  of  individuals,  be- 
comes merged  in  the  public  wrong,  so  as 
to  take  away  from  the  persons  injured  the 
right  which  thej'  would  otherwise  have 
to  maintain  actions  to  recover  damages 
which  each  may  have  .sustained  in  nis  per- 
son or  estate  from  the  wrongful  act. 

Nor  would  such  a  doctrine  be  consistent 
Avitii  sound  principle.  Carried  out  prac- 
tically, it  would  deprive  persons  of  all  re- 
dress' for  injury  to  property  or  health,  or 
for  personal  annoyance  and  discomfort, 
in  all  cases  where  the  nuisance  was  so 
genernland  extensive  asto  be  p.  legitimate 
subject  of  a  public  prosecution ;  so  that, 
in  effect,  a  wrong-doer  would  escape  all 
liability  to  make  indemnity  for  private  in- 
juries by  carrying  on  an  offensive  trade 
or  occupation  in  such  place  and  manner 
as  to  cause  injury  and  annoyance  to  a 
sufficient  number  of  persons  to  create  a 
common  nuisance. 

The  real  distinction  would  seem  to  be 
this:  That,  when  the  wrongful  act  is  of 
itself  a  disturbance  or  obstruction  only 
to  the  exercise  of  a  common  and  public 
right,  the  sole  remedy  is  by  public  prosecu- 
tion, unlf'ss  special  damage  is  caused  to 
imlividua't^.  In  such  case,  the  act,  of  it- 
self, does  no  wrong  to  individuals  distinct 


from  that  done  to  the  whole  community. 
But  when  the  alleged  nuisance  would  con- 
stitute a  private  wrong,  by  injuring  pr(»p- 
erty  or  health,  or  creating  personal  incon- 
venience and  annoyance,  for  which  an  ac- 
tion might  be  maintained  in  favor  of  a  per- 
son injured,  it  is  none  the  less  actionable 
because  the  wrong  is  committed  in  a  man- 
ner and  under  circumstances  which  would 
render  the  guilty  part^'  liable  to  indict- 
ment for  a  common  nuisance.  Tliis,  we 
think,  is  substantially  the  conclusion  to 
be  derived  from  a  careful  examination  of 
the  adjudged  cases.  The  apparent  con- 
flict between  them  can  be  reconciled  on 
the  ground  that  an  injury  to  private  prop- 
erty, or  to  the  health  and  comfort  of  an 
individual,  is  in  its  nature  special  and  pe- 
culiar, and  does  not  cause  a  damage  which 
can  properly  be  said  to  be  common  or 
public,  however  numerous  may  be  the 
cases  of  similar  damage  arising  from  the 
same  cause.  Certainly,  multii)licity  of  ac- 
tions affords  no  good  reason  for  denying 
a  person  all  remedy  for  actual  loss  and 
injury  which  he  may  sustain  in  his  person 
or  property  by  the  unlawful  acts  of  an- 
other, although  it  may  be  a  valid  ground 
for  refusing  redress  to  individuals  f(jr  a 
mere  invasion  of  a  common  and  public 
right 

The  rule  of  law  is  well  settled  and  famil- 
iar, that  every  man  is  bound  to  use  his 
own  property  in  such  manner  as  not  to 
injure  the  property  of  another,  or  the  rea- 
sonable and  proper  enjoyment  of  it.  and 
that  the  carrj'ing  on  of  an  offensive  trade 
or  business,  which  creates  noisome  smells 
and  noxious  vapors,  or  causes  great  and 
disturbing  noises,  or  which  otherwise  ren- 
ders the  occupation  of  property  in  the  vi- 
cinity inconvenient  and  uncomfortable,  is 
a  nuisance  for  which  any  person  whose 
property  is  damaged  or  whose  health  is 
injui-ed,  or  whose  reasonable  enjoyment 
of  his  estate  as  a  place  of  residence  is  im- 
paired or  destroyed,  thereby  may  well 
maintain  an  action  to  recover  compensa- 
tion for  the  injury.  The  limitations  prop- 
er to  be  made  in  the  application  of  this 
rule  are  accurately  stated  in  Bamford  v. 
Turn  lev.  8  Best  &  S.  66.  and  in  Ti])i)ing  v. 
Smelting  Co..  4  Best  &  S.  60S-615,  11  H.  L. 
Cas.  641.'.  and  cases  there  ciled.  See,  also, 
in  addition  to  cases  cited  by  the  counsel 
for  the  plaintiff,  Spencer  v.  Railway  Co..  8 
Sim.  193;  Soltau  v.  De  Held, 2  Sim.  (N.  S.) 
133. 

The  instructions  given  to  the  jury  were 
stated  in  such  form  as  to  lead  them  to 
infer  that  this  action  could  not  be  main- 
tained if  it  appeared  that  other  owners 
of  property  in  that  neighborhood  suffered 
injury  and  damage  similar  to  that  which 
was  'sustained  by  the  plaintiff  in  her  es- 
tate by  tlie  acts  of  the  defendants.  This, 
as  applied  to  the  facts  in  proof,  was  an  er- 
ror, and  renders  it  necessary  that  the  case 
should  be  tried  anew. 

Exceptions  sustained. 


(See,  also.  Francis  v.  Schoellkopf,  53  N.  Y.  152;  Bravton  v.  Fall  River,  113  Mass.  21S;  Railroad  Co. 

V  Jones   111  Pa   St.  204,  2  Atl.  Rep.  410;  Crook  v.  Pitcher,  61  Md.  510;  Sohn  v.  Cambern,  106  Ind.  302, 
6  N   E.  Rep.  813;  Clark  v.  Peckham.lO  R.  I.  35;  City  of  Chicago  v.  Buildingr  Ass'n,  102  111.  379;  Brown 

V  Wat«;on,  47  Me.  161;  Holmes  v.  Corthell.  80  Me.  31,  13  Atl.  Rep.  730;  Mehrhof  Bros.  Bnck  Manuf'g 
Co.  V.  Delaware,  etc.,  R.  Co.,  51  N.  J.  Law,  56,  16  Atl.  Rep.  12.) 


186 


LAW  OF  TORTS. 


V.  LEGALIZED  NUISANCE. 


(136  Mass.  239. ) 

Sawyer  et  ul.  v.  Davis  et  ah 

{Supreme  Judicial  Court  of  Massachusetts. 
Jan.  9,  1884.) 

1.  NuiSAXCE    —   Legalized     after    Injunction 

Granted. 
The  legislature  may,  by  virtue  of  its  police 
power,  pass  an  act  providing  that  manufacturers' 
and  others  employing  worlimen  may,  for  the  pur- 
pose of  giving  notice  to  such  employes,  ring  bells 
and  use  whistles  and  gongs  of  such  size  and 
weight,  in  such  manner,  and  at  such  hours,  as 
the  municipal  authorities  may  designate,  though 
their  use  of  such  bells,  whistles,  and  gongs  oper- 
ates to  the  injury  of  individuals,  which  otherwise 
a  court  of  equity  would  restrain. 

2.  Same — Dissolution  of  Injunction. 

An  injunction  restraining  the  ringing  of  a 
factory  bell,  used  to  notify  employes,  before  a 
certain  hour  in  the  morning,  does  not  give  a  vest- 
ed right  which  the  legislature  is  powerless  to 
take  away  by  a  statute  legalizing  the  ringing  of 
such  bell  befoi'e  that  hour,  and  on  a  bill  of  review 
in  such  case  the  injunction  will  be  dissolved. 

Case  reserved. 

Bill  of  review.  Plaintiffs,  manufactur- 
ers of  Plymouth,  were,  on  October  1,1SS1, 
restrained  by  a  decree  of  this  court,  on  a 
bill  in  equity  by  defendants,  from  ringing 
the  bell  on  their  mill  before  the  hour  of 
6:30  A.  M.  Davis  v.  Sawyer,  133  Mass.  289. 
March  28,  1883,  the  legislature  passed  an 
act  providing  that  "manufacturers  and 
others  empluying  workmen  are  author- 
ized, for  the  purpose  of  giving  notice  to 
such  employes,  to  ring  bells  and  use 
whistles  and  gongs  of  such  size  and 
weight,  in  such  manner,  and  atsuch  hours, 
as  the  board  of  aldermen  of  cities  and  the 
sel?ctmen  of  towns  may  in  writing  desig- 
nate." St.  Mass.  1883,  c.  84.  Undpr  such 
statute  the  selectmen  of  the  town  licensed 
plaintiffs  to  ring  their  bell  at  5  a.  m. 
The  bill  pra3'ed  a  dissolution  or  modifica- 
tion of  the  injunction  to  enable  plaintiffs 
to  act  under  their  license.  Defendants  de- 
murred to  the  bill,  claiming  that  the 
statute  was  unconstitutional  so  far  as  ap- 
plicable to  defendants.  At  the  hearing  be- 
fore CoLBURN,  J.,  he  reserved  the  case  for 
the  consideration  of  the  full  court. 

F.  I).  Allen,  for  plaintiffs.  C.  G.  Davis, 
for  defendants. 

C.  Allen,  J.  Nothing  is  better  estab- 
lished than  the  power  of  the  legislature  to 
make  what  are  called  "police  regula- 
tions, "  declaring  in  what  manner  property 
shall  beused  and  enjoyed,  and  businesscar- 
ried  on,  with  a  view  to  the  good  oi-der  and 
benefit  of  the  community,  even  although 
thej'  may  to  some  extent  interfere  with 
the  full  enjoyment  of  private  property, 
and  although  no  compensation  is  given 
to  a  penson  so  inconvenienced.  Bancroft 
v.  Cambridge,  126  Mass.  438-441.  In  most 
instances,  the  illustrations  of  the  proper 
exercise  of  this  power  are  found  in  rules 
and  regulations  restraining  the  use  of 
property  by  the  o\vner  in  such  manner  as 
would  cause  disturbance  and  injury  to 
others.  But  the  privilege  of  continuing  in 
the  passive  enjoyment  of  one's  own  prop- 
erty, in  the  same   manner   as   formerly,  is 


subject  to  a  like  limitation ;  and  with  the 
increase  of  population  in  a  neighborhood, 
and  the  advance  and  development  of  busi- 
ness, the  quiet  and  seclusion  and  customa- 
ry enjoyment  of  homes  are  necessarily 
interfered  with,  until  it  becomes  a  ques- 
tion how  the  right  which  each  person  has 
of  prosecuting  his  lawful  business,  in  a 
reasonable  and  proper  manner,  shall  be 
made  consistent  with  the  other  righl 
which  each  person  has  to  be  free  from  un- 
reasonable disturbance  in  the  enjoyment 
of  his  property.  Merrifield  v.  Worcester, 
110  Mass.  216,  219.  In  this  conflict  of 
rights,  police  regulations  by  the  legislature 
find  a  proper  oflHce  in  determiuinghow  far. 
and  under  what  circumstances,  the  indi- 
vidual must  yield,  with  a  view  to  general 
good.  Forexample,  if,  in  a  neighborhood 
thickly  occupied  by  dwelling-houses,  any 
one,  for  his  own  entertainment  or  the 
gratification  of  a  whim,  were  to  cause 
bells  to  be  rung  and  steam-whistles  to 
be  blown  to  the  extent  that  is  usual  with 
the  bells  and  steam-whistles  of  locomotive 
engines  near  railroad  stations  in  large  cit- 
ies, there  can  be  no  doubt  that  it  would  be 
an  infringement  of  the  rights  of  the  resi- 
dents, for  which  they  would  find  ample 
remedy  and  vindication  in  the  courts.  But 
if  the  legislature,  with  a  view  to  the  safe- 
ty of  life,  provides  that  bells  shall  be  rung 
and  whistles  sounded,  under  thosecircum- 
stances,  persons  living  near  by  must  nec- 
essarilj'  submit  to  some  annoyance  from 
this  source,  which  otherwise  they  would 
have  a  right  to   be  relieved  from. 

It  is  ordinarily  a  proper  subject  for  legis- 
lative discretion  to  determine  by  general 
rulps  the  extent  to  which  those  who  are 
engaged  in  customary  and  lawful  necessa- 
ry occupations  shall  be  required  or  al- 
lowed to  give  signals  or  warnings  b.v  bells 
or  whistles,  or  otherwise,  wiLh  a  view  ei-. 
ther  to  the  public  safety,  as  in  the  case  of 
railroads,  or  to  the  necessary  or  conven- 
ient operation  and  management  of  their 
own  works;  and  ordinarily  such  determi- 
nation is  binding  upon  the  courts,  as  well 
as  upon  citizens  generally.  And  when 
the  legislature  directs  or  allows  that  to 
be  done  which  Avould  otherwise  be  a  nui- 
sance, it  will  be  valid,  upon  the  ground 
that  the  legislature  is  ordinarily  the  prop- 
er judge  of  wiiat  the  public  good  requires, 
unless  carried  to  such  an  extent  that  it 
can  fairlj'  be  said  to  be  an  unwholesome 
and  unreasonable  law.  Bancroft  v.  Cam- 
bridge, 126  Mass.  441.  It  Is  accordingly 
held  in  many  cases,  and  is  now  a  well-es- 
tablished rule  of  law,  at  least  in  this  com- 
monwealth, that  the  incidental  injury 
which  results  to  the  owner  of  property 
situated  near  a  railroad,  caused  by  the 
necessary  noise,  vibration,  dust,  and 
smoke  from  the  iiassing  trains,  which 
would  clearly  amount  to  an  actionable 
nuisance  if  the  operation  of  the  railroad 
weie  not  authorized  by  the  legislature, 
must,  if  the  running  of  the  trains  is  so- 
authorized,  be  borne  by  the  individual, 
without  compensation  or  remedy  in  any 
form.     The  legislative  sanction  makes  the 


NUISANCE. 


187 


business  lawful,  and  defines  what  must  be 
accepted  as  a  reasonable  use  of  property 
and  exercise  of  rights  on  tiie  part  of  tiie 
railroad  conipanj-,  subject  always  to  tlie 
qualification  that  the  business  must  be 
carried  on  without  negligence  or  unnecessa- 
ry disturbance  of  the  rights  of  others. 
And  the  same  rule  extends  to  oth^^r  causes 
of  annoyance  which  are  regulated  and 
sanctioned  by  law^  Presbrey  v.  Railway, 
103  Mass.  1,  6,  7;  Walker  v.  Railway,  Id. 
10-14:  Bancroft  v.  Cambridge,  12G  Mass. 
441;  Call  v.  Allen.  1  Allen,  137;  Com.  v. 
Chemical  Works,  16  Gray,  231-233;  Struth- 
ers  V.  Railway,  87  Pa.  St.  282;  Hatch  v. 
Railroad,  28  Vt.  112, 147  ;  Brand  v.  Railway, 
L  R.  1  Q.  B.  130,  L.  R.  2  Q.  B.  223,  L.  R.  4 
H.  L.  171 ;  Vaughan  v.  Railway,  5  Hurl.  & 
N.  679,  685,  6S7;  Rex  v.  Pease,  4  Barn.  & 
Adol.  30;  Sedg.  St.  &  Const.  Law,  435,  436. 

The  recent  case  of  Baltimore  &  P.  R.  Co. 
V.  Fifth  Baptist  Church,  108  U.  S.  317,  2 
Sup.  Ct.  Rep.  719,  is  strongl3'  relied  on  by 
the  defendants  as  an  authority  in  their 
favor.  There  are,  however,  two  material 
and  decisive  grounds  of  distinction  be- 
tween that  case  and  this.  There  the  rail- 
road company  had  only  a  general  legisla- 
tive authority  to  construct  works  neces- 
sary and  expedient  for  the  proper  comple- 
tion and  maintenance  of  its  railroad,  un- 
der which  authority  it  assunied  to  build 
an  engine-house  and  machine-shop  close 
b3'  an  existing  church,  and  it  was  held 
that  it  was  never  intended  to  grant  a  li- 
cense to  select  that  particular  j^lace  for 
such  works,  to  the  nuisance  of  the  church. 
Moreover,  in  that  case,  the  disturbance 
was  so  great  as  not  only  to  render  the 
church  uncomfortable,  but  almost  unen- 
durable, as  a  place  of  worship,  and  it  vir- 
tuall3'  deprived  the  owners  of  tlie  use  and 
enjoyment  of  their  property.  We  do  not 
understand  that  it  was  intended  to  lay 
down,  as  a  general  rule  applicable  to  all 
cases  of  comparatively  slight,  though  real, 
annoj'ance,  naturally  and  necessarily  re- 
sulting, in  a  greater  or  lesrs  degree,  to  all 
owners  of  property  in  the  neighbor- 
hood, from  a  use  of  property,  or  a  method 
of  carrying  on  a  lawful  business  which 
clearly  falls  within  the  terms  and  spirit  of 
a  legislative  sancticm,  that  such  sanction 
will  not  affect  the  claim  of  such  owner  to 
relief,  but,  rather,  that  the  court  expressly 
waived  the  expression  of  an  opinion  upon 
the  point. 

In  this  commonwealth,  as  well  as  in  sev- 
eral of  the  United  States  and  in  England, 
the  cases  already  cited  show  that  the  ques- 
tion is  settled  by  authoritj',  and  we  re- 
main satisfied  with  the  reasons  upon 
which  the  doctrine  was  here  established. 
Courts  are  compelled  to  recognize  the  dis- 
tinction between  such  serious  disturbances 
as  existed  in  the  case  referred  to  and  com- 
paratively slight  ones,  which  differ  in  de- 
gree only,  and  not  in  the  kind,  from  those 
suffered  by  others  in  the  same  vicinity. 
Slight  infractions  of  the  natural  rights  of 
the  individual  may  be  sanctioned  by  the 
legislature,  under  the  proper  exercise  of 
the  police  power,  with  a  view  to  the  gen- 
eral good.  Grave  ones  will  fall  within  the 
constitutional  limitation  that  the  legisla- 
ture is  onlj"  authorized  to  pass  reasonable 
laws.    The  line  of  distinction  cannot  be  so 


laid  down  as  to  furnish  a  rule  f(jr  settling 
all  cases  in  advance.  The  difficulty  of 
marking  the  boundaries  of  this  legislative 
power,  or  of  prescribing  limits  to  its  exer- 
cise, was  declared  in  Com.  v.  Alger,  7  Cush. 
53,  85,  and  is  universally  recognized. 
Courts,  however,  must  determine  the 
rights  of  parties  in  particular  cases  as 
they  arise;  always  recognizing  that  the 
ownership  of  property  does  not  of  itself 
im[)ly  the  right  to  use  or  enjoy  it  in  every 
possible  manner,  without  regard  to  cor- 
responding rights  of  others  as  to  the  use 
and  enjoyment  of  their  property ;  and  also 
that  the  rules  of  the  common  law,  which 
have  from  time  to  time  been  established, 
declaring  or  limiting  such  rights  of  use 
and  enjoyment,  may  themselves  be 
changed  as  occasion  may  require.  Muun 
V.  Illinois,  94  U.  S.  113-134. 

In  the  case  before  us,  looking  at  it  for 
the  present  without  regard  to  the  decree 
of  this  court  in  the  former  case  between 
these  parties,  we  find  nothing  in  the  facts 
set  forth  which  show  that  the  statute  re- 
lied on,  as  authorizing  the  plaintiffs  to 
ring  their  bell,  (St.  1883,  c.  84,)  should  be 
declared  unconstitutional.  It  is  virtually 
a  license  to  manufacturers,  and  others 
employing  workmen,  to  carry  on  their 
business  in  a  method  deemed  by  the  legis- 
lature to  be  convenient,  if  not  necessary, 
for  the  purpose  of  givingnotice,  b^^  ringing 
bells  and  using  whistles  and  gongs,  in  such 
manuerand  at  such  times  as  raaybedesig- 
nated  in  writing  by  municipal  officers.  In 
character  it  is  not  unlike  numerous  other 
instances  to  be  found  in  our  statutes, 
where  the  legislature  has  itself  fixed,  or 
has  authorized  municipal  or  other  boards 
or  offic(-rs  to  fix,  the  places,  times,  and 
methods  in  which  occupations  maybe  car- 
ried on,  or  acts  done,  which  would  natu- 
rally' be  attended  with  annoyance  to  indi- 
viduals. The  example  of  bells  and  whis 
ties  on  locomotive  engines  has  already 
been  mentioned.  Reference  may  also  be 
made  to  the  statutes  regulating  the  use  of 
stationary  steam-engines,  the  places  and 
manner  of  manufacturing  or  keeping  pe- 
troleum, of  carrying  on  other  offensive 
trades  and  occupations,  of  storing  gun- 
powder, and  of  establishing  hospitals, 
stables,  and  bowling-alleys. 

The  defendants,  however,  contend  that 
a  different  question  arises  in  the  present 
case,  where  the  plaintiffs  rely  upon  a  leg- 
islative sanction  given  to  acts  after  it  had 
been  determined  by  this  court  that  the  do- 
ing of  them  was  attended  with  a  peculiar 
injury  to  the  defendants,  which  entitled 
them  to  a  remedy  as  for  a  nuisance. 
There  can  be  no  doubt  that  such  sanction 
would  be  a  good  defense  to  an  indictment 
for  a  nuisance;  or  to  a  proceeding  insti- 
tuted by  an  individual,  whose  only  griev- 
ance was  that  he  had  sustained  special 
damage  in  consequence  of  being  disturbed 
in  the  enjoyment  of  some  public  right, 
such  as  a  right  to  travel  upon  a  highway 
or  river.  His  public  right  may  clearly  be 
regulated  and  controlled  bj'the  legislature 
after  a  decision  by  the  court  as  well  as  be- 
fore. Com.  V.  Essex  (^o.,  13  Gray.  2.39.  247. 
But  the  argument  is  urged  upon  us  with 
great  force  that  in  the  present  case  there 
had  been  a  judicial  determination  that  the 


188 


LAW  OF  TORTS. 


riiifring:  of  the  bell,  at  the  hours  now  au- 
thor,zed  by  the  tei-nis  of  the  statute  aud 
the  designation  of  the  selectmen,  was  a 
private  nuisance  to  the  defendants,  not 
growing  out  of  any  public  right,  and  that 
the  statute  ought  not,  as  a  matter  of  con- 
struction, to  be  held  applicab  e  to  this 
case;  or,  if  such  is  its  necessary  construc- 
tion, that  it  is  unconstitutional,  as  inter- 
ferina  with  their  vested  rights.  Inthefirst 
place,  we  can  have  no  doubt  that  the  stat- 
ute, by  its  just  construction,  is  in  its 
terms  applicable  to  the  present  case.  It 
is  undoubtedly  true  that  neither  a  general 
authority  nor  a  particular  license  is  to  be 
so  construed  as  to  be  held  to  sanction 
what  was  not  intended  to  be  sanctioned. 
A  general  authority  Is  not  necessarily  to 
be  treated  as  a  particular  license,  (Com. 
V.  Kidder,  107  Mass.  1S8;)  and  in  some 
cases,  even  where  a  particular  liceiise  or 
authority  has  been  given,  as  to  keep  an 
inn,  ale-house,  or  slaughter-house  in  a  par- 
ticular place,  which  is  specified,  this  au- 
thority has  not  been  deemed  to  sanction 
the  keeping  of  it  in  an  improper  manner. 
Rex  V.  Cross,  2  Car.  &  P.  483;  Com.  v.  Mc- 
Donough,13  Allen,  581,  584;  State  v.  Mulli- 
kin.  8  Blackf.  2(j();  U.  S.  v.  Elder,  4  Cranch, 
C.  C.  507.  And.  ordinarily,  a  statute  which 
authorizes  a  thing  to  be  done,  which  can 
be  done  without  creating  a  nuisance,  will 
not  be  deemed  to  authorize  a  nuisance. 
In  such  cases  it  is  not  to  be  assumed  that 
it  was  contemplated  by  the  legislature 
that  what  was  so  authorized  would  have 
the  necessary  effect  to  create  a  nuisance, 
or  that  it  would  be  done  in  such  a  manner 
as  to  create  a  nuisance;  and,  if  a  nuisance 
is  created,  there  will  in  such  cases  ordi- 
narily be  a  remedy  at  law  or  in  equity. 
Eames  v.  Worsted  Co.,]]  Mete.  (Mass.)  570; 
Haskell  v.  New  Bedford. lOS  Mass.2US,  215; 
Com.  V.  Kidder,  107  Mass.  1S8.  But,  on 
the  other  hand,  the  authority  to  do  an  act 
must  be  held  to  carry  with  it  whatever  is 
naturall3'  Incidental  to  the  ordinary  and 
reasonableperformanceof  that  act.  When 
the  legislature  authorized  factory  bells  to 
be  rung,  it  must  have  been  contemplated 
that  they  would  be  heard  in  the  neighbor- 
hood. That  is  a  natural  and  inevitable 
consequence.  The  legislature  must  be 
deemed  to  have  deteimined  that  the  bene- 
fit is  greater  than  the  injury  and  annoy- 
ance, and  to  have  intended  to  enact  that 
the  public  must  submit  to  the  disturbance 
for  thesake  of  the  greater  advantage  that 
would  result  from  this  method  of  carrying 
on  the  business  of  manufacturing.  It 
must  be  considered,  therefore,  in  this  case, 
that  a  legislative  sanction  has  been  given 
to  the  veiy  act  which  this  court  found  to 
create  a  private  nuisance.  It  is  then  ar- 
gued that  the  legislature  cannot  legalize  a 
nuisance,  and  cannot  take  away  the  rights 
of  the  defendants  as  they  have  been  ascer- 
tained and  declared  by  this  court;  and 
this  is  undoubtedly  true,  so  far  as  such 
rights  have  become  vested.  For  example, 
if  the  plaintiff,  under  an  existing  rule  of 
law,  has  a  right  of  action  to  recover  dam- 
ages for  a  past  injury  suffered  by  him,  his 
remedy  cannot  be  cut  off  by  an  act  of  the 
legislature.  So,  also,  if,  in  a  suit  in  equity 
to  restrain  the  continuance  of  a  nuisance, 
damages   have  been  awarded   to   him,  or 


costs  of  suit,  he  would  have  an  undoubted 
right  to  recover  them,  notwithstanding 
the  statute.  But,  on  the  other  hand,  the 
legislature  may  define  what  in  the  future 
shall  constitute  a  nuisance,  such  as  will 
entitle  a  person  injured  thereby  to  a  legal 
or  equitable  remed3%  and  may  change  the 
existing  common-law  rule  upon  the  sub- 
ject. It  may  declare,  for  the  future,  in 
what  manner  a,  man  may  use  his  property 
or  carry  on  a  lawful  business  without  be- 
ing liable  to  an  action  in  consequence 
thereof;  that  is,  it  may  define  what  shall 
be  a  lawful  and  reasonable  mode  of  con- 
duct. This  legislative  power  is  not  whol- 
ly bejond  the  control  of  the  courts,  be- 
cause it  is  restrained  by  the  constitutional 
provision  limiting  it  to  wholesome  and 
reasonable  laws,  of  which  the  court  is  the 
final  judge;  but,  within  this  limitation, 
the  exercise  of  the  police  power  of  the  leg- 
islature will  apply  to  all  within  the  scope 
of  its  terms  and  spirit.  The  fact  that  the 
rights  of  citizens,  as  previously  existing, 
are  changed,  is  a  result  which  always  hap- 
pens. It  is,  indeed,  in  order  to  change 
those  rights  that  the  police  power  is  exer- 
cised. So  far  as  regards  the  rights  of  par- 
ties accruing  after  the  date  of  the  statute, 
they  are  to  be  governed  by  the  statute. 
Their  rights  existing  prior  to  that  date 
are  not  affected  b^'  it.  To  illustrate  this 
view,  let  it  be  supposed  that  the  case  be- 
tween the  present  parties  in  its  original 
stage  had  been  determined  in  favor  of  the 
manufacturers,  under  which  decision  they 
would  have  had  a  right  to  ring  their  bell ; 
and  that  afterwards  a  statute  had  been 
passed  providing  that  manufacturers 
should  not  ring  bells,  except  at  such  hours 
as  might  be  approved  by  the  selectmen ; 
aud  that  these  manufacturers  had  then 
proceeded  to  ring  their  bell  at  other  hours 
not  included  in  such  approval.  It  certain- 
ly could  not  be  said  that  they  had  a  vest- 
ed right  to  do  so, under  the  decision  of  the 
court. 

The  injunction  which  was  awarded  bj' 
the  court,  upon  the  facts  which  appeared 
at  the  hearing,  did  not  imply  a  vested 
right  in  the  present  defendants  to  have  it 
continued  permanently.  Though  a  final  de- 
termination of  the  case  before  the  court, and 
though  binding  and  imperative  upon  the 
present  plaintiffs,  and  enforceable  against 
them  bj'  all  the  powers  vested  in  a  court 
of  equity,  yet  they  were  at  liberty  at  any 
time,  under  new  circumstances  making  it 
inequitable  for  it  to  be  longer  continued, 
to  apply  to  the  court  for  a  review  of  the 
case  and  a  dissolution  of  the  injunction. 
In  respect  to  such  a  state  of  facts,  an  in- 
junction can  nevpr  be  said  to  be  final,  in 
the  sense  that  it  is  absolute  for  all  time. 
Even  without  an.v  new  legislation  affect- 
ing the  rights  of  the  parties,  with  an  in- 
crease of  their  own  business,  and  a  general 
increase  of  manufacturing  and  other  busi- 
ness in  the  vicinity,  and  of  a  general  and 
pervading  change  in  the  character  of  the 
neighborhood,  it  might  be  very  unreason- 
able to  continue  an  injunction  which  it 
was  in  the  first  instance  entirely  reasona- 
ble and  proper  to  grant.  The  ears  of  the 
court  could  not,  under  such  new  circum- 
stances, be  absolutely  shut  to  an  applica- 
tion  for  its    modification,    without    any 


NUISANCE. 


189 


Dew  statute  declarins  the  policy  of  the 
coninioiiweulth  in  respect  to  any  branch 
of  business  or  employ' ment.  But  a  decla- 
ration by  the  legislature  that,  in  its  judg- 
ment, it'is  reasonable  and  necessary  for 
certain  branches  of  business  to  be  carried 
on  in  particular  ways,  notwithstanding 
the  incidental  disturbance  and  annoy- 
ance to  citizens,  is  certainly  a  change  of 
circumstances  which  is  entitled  to  the 
highest  consideration  of  the  court:  and  in 
the  present  case  we  cannot  doubt  that  it 
is  sufficient  to  entitle  the  plaintiffs  to  re- 
lief from  the  operation  of  the  injunction. 
The  method  of  procedure  to  which  the 
plaintiffs  have  resorted   is  the  usual   and 


proper  one  in  such  circumstances.  2 
Danioirn  Ch.  PI.  (4th  Amer.  Ed.)  1577, 
note  3;  Story,  Eq.  PI.  §  404  et  seq. ;  Clapp 
V.  Thaxter,  7  Gray,  384.  And,  for  author- 
ities tending  to  sh(jw  that  the  plaintiffs  are 
entitled  to  the  relief  which  they  seek  in 
consequence  of  a  subsequent  statute  chang- 
ing the  rights  of  the  parties,  see  Pennsyl- 
vania V.  Bridge  Co.,  lf<  How.  421;  Clinton 
Bridge,  10  Wall.  454.  463;  Gilman  v.  Phila- 
delphia, 3  Wall.  713.  732;  South  Carolina  v. 
Georgia,  93  U.  S.  4,  12;  Bridge  Co.  v.  U.  S., 
105  V.  S.  470,  4S0;  Com.  v.  Railroad  Co.,  14 
Grav,93,  97;  Bartholomew  v.  Harwinton, 
33  Conn.  408. 
Demurrer  overruled. 


(See,  also,  Cogswell  v.  Railroad  Co.,  103  N.  Y.  10,  8  N.  E.  Rep.  537;  Miller  v.  Mayor,  etc.,  109  D. 
S.  3S.5,  3  Sup.  Ct.  Rep.  228;  Baltimore  &  P.  R.  Co.  v.  Fifth  Baptist  Church,  108  U.  S.  317,  2  Sup.  Ct. 
Rep.  719;  Village  of  Pine  City  v.  Munch,  42  Minn.  342,  44  N.  W.  Rep.  197;  Railroad  Co.  v.  Truman,  L. 
R.  11  App.  Cas.  45.) 


^owen  &  bowen. 


VI.  ABATE.AiENT  OF  NUISANCE. 


(11  Mees.  &  W.  17  i.) 

Jones  v.  Williams. 

{Court  of  Exchequer.    Jan.  28, 1843.) 

1.  NciSAXCE — Abatement — Notice  to  Remove. 

A  person  has  no  right  to  enter  upon  the  land  of 
another  to  abate  a  nuisance  of  filth,  without  pre- 
vious request  or  notice  to  the  occupant  to  remove 
it,  unless  it  appears  that  such  occupant  was  the 
original  wrong-doer  by  placing  it  there,  or  pos- 
sibly that  it  arises  from  a  default  in  the  perform- 
ance of  some  duty  or  obligation  cast  upon  him  by 
law,  or  that  the  nuisance  is  immediately  danger- 
ous to  life  or  health. 
'..  Same. 

Such  request  or  notice  to  the  occupant  is  neces 
sary,  if,  when  he  acquired  possession  of  the  land, 
the  nuisance  already  existed  upon  it,  and  he 
simply  omitted  to  remove  it. 

Rule  to  show  cause  why  judgment 
should  not  be  entered  for  plaintiff  non  ab- 
ut n  n te  veredicto . 

Action  of  trespass  to  land  brought  by 
Jones  against  Williams.  Defendant  by 
his  plea  justified  the  entry  to  abate  a  nui- 
sance of  filth  permitted  by  plaintiff  upon 
his  adjoining  lands.  The  verdict  was  for 
defendant.  Plaintiff  obtained  a  rule  to 
show  cause  why  judgment  should  not  be 
entered  in  hiaiayor  non  obstante  veredicto. 

Jervis  &  Welsby  showed  cause.  Erie 
&  Townsend,  contra. 

Pakke,  B,  a  rule  was  obtained  in  this 
case  by  Mr.  Erie  for  judgment  non  ob- 
stante veredicto  on  the  fourth  plea  found 
for  the  defendant,  and  argued  a  few  daj's 
ago.  This  plea,  to  an  action  of  trespass 
gaare  chiusuni  freg'it,  atated  that  the  de- 
fendant, before  and  at  the  said  time  when, 
etc.,  was  possessed  of  a  dwelling-house 
near  the  locus  in  quo,  and  dwelt  therein; 
and  that  the  plaintiff,  before  and  at,  etc., 
injuriously  and  wrongfully  permitted  and 
suffered  large  quantities  of  dirt,  filth,  ma- 
nure, compost,  and  refuse  to  be,  remain, 
and  accumulate  on  the  locus  in  quo,  by 
reason  whereof  divers  noxious,  offensive, 
and  unwholesome  smells,  etc.,  came  from 
the  close  into  the  defendant's  dwelling- 
house;  and  then  the  defendant  justifies  the 
trespass  hy  entering  in  order  to  abate 
the  nuisance,  and   in  so  doing   damaging 


the  wall,  and  digging  up  the  soil.  The 
question  for  us  to  decide  is  whether  this 
plea  is  bad  after  verdict,  and  we  are  of 
opinion  that  it  is.  The  plea  doesnotstate 
in  what  the  wrongful  permission  of  the 
plaintiff  consisted ;  whether  he  was  a 
wrong-doer  himself,  by  originally  placing 
the  noxious  matter  on  his  close,  and  aft- 
erwards permitting  it  to  continue;  or 
whether  it  was  ijlaced  by  another,  and  he 
omitted  to  remove  it;  or  whether  he  was 
under  an  obligation,  by  prescriptive 
usage  or  otherwise,  to  cleanse  the  place 
where  the  nuisance  was,  and  he  omitted 
to  discharge  that  obligation,  whereby 
the  nuisance  was  created.  The  proof  of 
any  of  these  three  circumstances  would 
have  supported  the  plea;  and,  if  in  none 
of  the  three  cases  a  notice  to  remove  the 
nuisance  was  necessary  before  an  entry 
could  take  place,  the  plea  is  good;  but.  if 
notice  was  necessary  in  any  one,  the  plea 
is  bad,  by  reason  of  its  neither  contain- 
ing an  averment  that  such  a  notice  was 
given,  nor  showing  that  the  continuance 
was  of  such  a  description  as  not  to  require 
one. 

It  is  clear  that  if  the  plaintiff  himself 
was  the  original  wrong-doer,  by  placing 
the  filth  upon  the  Vochs /«  ^uo,  it  might 
be  removed  by  the  party  injured,  without 
any  notice  to  the  pl.nintiff ;  and  so,  possi- 
bly, if  by  his  default  in  not  performing 
some  f)bligation  incumbent  on  him,  for 
that  is  his  own  wrong  also;  but  if  the 
nuisance  was  levied  by  another,  and  the 
defendant  succeeded  to  the  possession  of 
the  locus  in  quo  afterwards,  the  author- 
ities are  in  favor  of  the  necessity  of  a  no- 
tice being  given  to  him  to  remove,  before 
the  party  aggrieved  can  take  the  law  into 
his  own  hands. 

We  do  not  relyon  the  decision  in  Earl  of 
Lonsdale  v.  Nelson,  2  Barn.  &  C.  302,  3 
Dow.  &  R  550,  as  establishing  the  necessi- 
ty of  notice  in  such  a  case,  for  there  much 
more  was  claimed  than  a  right  to  remove 
a  nuisance,  viz.,  a  right  to  construct  a 
work  on  the  plaintiff's  soil,  which  no  au- 
thority warranted  :  but  Lord  AVynford's 
dicturn  is  in  favor  of  this  objection,  for 
.  he  states  that   a  notice  is   requisite  in  all 


190 


LAW  OF  TORTS. 


cases  of  nuisance  by  omission,  and  the 
older  authorities  fully  warrant  that  opin- 
ion, where  the  omission  is  the  uon-reniov- 
al  of  a  nuisance  erected  by  another.  Pen- 
ruddock's  Case,  5  Coke,  101a,  shows  that  an 
asiiize  oi  quod  perm ittat  prosternere  would 
not  lie  against  the  alienee  of  the  party 
who  levied  it,  without  notice.  The  judg- 
ment in  that  case  was  affirmed  on  error; 
and  in  the  king's  bench,  on  the  argument, 
the  judges  of  that  court  agreed  that  the 
nuisance  might  be  abated,  without  suit, 
in  the  hands  of  the  feoffee, — that  is,  as  it 
should  seem,  with  notice;  for  in  Jenkin's 
Sixth  Century  Case,  57,  (no  doubt  refer- 
ring to  Penruddock's  Case,)  the  law  is 
thus  stated:  "A.  builds  a  house  so  that 
it  hangs  over  the  house  of  B.,  and  is  a  nui- 
sance to  him.  A.  makes  a  feoffment  of  his 
house  to  C,  and  B.  a  feoffment  of  his 
house  to  D.,  and  the  nuisance  continues. 
Now,  D.  cannot  abate  the  said  nuisance, 
or  have  a  quod  pevmittat  for  it,  before  he 
makes  a  request  to  C.  to  abate  it,  for  C. 
is  a  stranger  to  the  wrong.  It  would  be 
otherwise  if  A.  continued  his  estate,  for 
lie  did  the  wrong.  If  nuisances  are  in- 
creased after  several  feoffments,  these  in- 
creases are  new  nuisances,  and  may  be 
abated  without  request."  We  think  that 
a  notice  or  request  is  necessary,  upon 
these  authorities,  in  the  case  of  a  nuisance 
continued  by  an  alienee;  and  therefore 
the  plea  is  bad,  as  it  does  not  state  that 
such  a  notice  was  given  or  request  made, 
nor  that  the  plaintiff  was  himself  the 
wrong-doer,  by  having  levied  the  nuisance, 
or  neglected  to  perform  some  obligation 
by  the  breach  of   which  it  was  created. 

Abinger,  C.  B.,  observed  that  it  might 
be  necessary  in  some  cases,  where  thei'e 
was  such  immediate  danger  to  life  or 
health  as  to  render  it  unsafe  to  wait,  to 
remove  without  notice,  but  then  it  should 
be  so  pleaded ;  in  which  the  rest  of  the 
court  concurred. 

Kule  absolute. 


(126  Pa.  St.  .511,  18  Atl.  Reo.  15.) 
Crosland  v.  Borough  of  Pottsvili.e. 

(Supreme  Court  of  Pennsylvania.   May  27, 1889. ) 
Nuisance — Abatement— License. 

Where  the  licensee  of  the  right  to  conduct  sur- 
face water  from  his  premises  across  the  land  of 
another  exceeds  his  privilege,  and  uses  the  drain 
in  such  a  manner  as  to  create  a  public  nuisance, 
by  conducting  noxious  matter  through  it,  the 
licensor  may,  after  due  notice,  close  up  the 
drain,  and  on  a  continued  use  of  the  drain  by 
the  licensee,  thus  causing  an  overflow  into  the 
highway,  the  remedy  of  the  borough  authorities 
is  against  the  licensee,  and  they  have  no  right  to 
open  up  the  drain  through  the  licensor's  prem- 
ises. 

Errorto  court  of  common  pleas,  Schuyl- 
kill county. 

Action  for  damages  by  John  M.  Cross- 
laijd  against  the  borough  of  Pottsville, 
for  reconstructing  a  drain  across  plain- 
tiff's premises.  A  verdict  was  directed 
and  rendered  for  defendant,  and  plaintiff 
brings  error. 

J.  IF.  Mayer,  (with  him  John  W.  Ryan 
and  W.  F.  ISbepherd,)  for  plaintiff  in  error. 
R.  H.  Koch,  for  defendant  in  error. 


Clark,  J.  After  the  argument  of  this 
case,  it  was  assigned  to  our  late  Brother 
Tkunkey  for  an  opinion.  After  his  death, 
the  reas.sigument  of  it  was  overlooked, 
and  hence  the  delay  in  entering  jiidgment. 
We  will  not  enter  into  any  extended  dis- 
cussion of  the  case,  but  will  briefly  state 
the  grounds  for  the  judgment  we  now  en- 
ter. As  the  jury  received  binding  instruc- 
tions to  find  for  the  defendant,  the  testi- 
mony adduced  by  the  plaintiff,  with  all 
reasonable  inferences  to  be  drawn  there- 
from, must  be  taken  as  establishing  the 
true  theory  of  the  case  on  the  facts.  We 
assume,  therefore,  that  Crossland  gave 
to  Col.  Brown  the  right  to  conduct  the 
surface  water  only  from  his  premises 
throu2:h  this  drain  into  the  Schuylkill 
river;  that  after  the  drain  pipes  were  put 
down  he  turned  into  it  the  foul  matter 
which  came  from  his  cess-pool  and  privy 
vaults,  and  that  he  sold  a  similar  privilege 
to  others;  that  thereby  the  drain,  instead 
of  being  used  to  conduct  the  surface  and 
mountain  water  as  originally  intended, 
was  converted  into  a  common  sewer, 
which  caused  the  plaintiff's  house  to  be 
untenantable,  and  it  is  believed  unhealthy, 
and  thus  became  a  nuisance,  which  the 
plaintiff  claimed  the  right  to  abate. 
There  is  testimony  also  that  the  privilege 
given  to  Brown  was  experimental  merely. 
If  it  should  prove  unsatisfactory,  Cross- 
land  says  he  had  the  right  at  any  time  to 
terminate  it.  The  privilege  must  betreat- 
ed,  therefore,  as  a  mere  license,  which  it 
was  in  Crossland's  power  to  revoke  at 
his  pleasure.  It  must  be  assumed,  also, 
that  the  persons  who  were  employed  to 
adjust  these  pipes,  and  who  reconstructed 
the  sewer  so  as  to  again  throw  its  con- 
tents upon  the  plaintiff's  premises,  were 
acting  under  authority  from  the  borough, 
and  were  directed  to  do  just  what  was 
done,  and  that  the  borough  was  respon- 
sible for  these  acts.  There  is  abundant 
testimony  to  justify' this  inference,  no  mat- 
ter what  the  facts  may  have  been.  The 
drain  was  put  down  by  Brown  for  his 
own  convenience.  The  borough  had  noth- 
ing to  do  with  it;  but  as  it  was  laid  in 
the  street,  and  suffered  to  remain,  and 
the  borough  exercised  its  authority  to 
maintain  it,  we  may  infer  that  it  was 
originally  placed  there  by  permission,  or 
that  its  construction  was  afterwards 
assented  to.  Nor  hf»d  Crossland  anything 
to  do  with  the  drain  beyond  yielding  his 
assent  that  it  might  be  laid  in  his  lots,  to 
lead  from  the  street  to  the  river,  and  to 
conduct  the  surface  water.  It  conferred 
only  a  limited  right. 

When  a  person  who  is  entitled  to  a  lim- 
ited right  exercises  it  in  excess,  so  as  to 
produce  a  nuisance,  it  may  be  abated  to 
the  extent  of  the  excess.  Barclay  v. 
Com..  25  Pa.  St.  503;  Taggart  v.  Cora.,  21 
Pa.  St.  527.  But,  if  the  nuisance  cannot 
be  abated  without  obstructing  the  right 
altogether,  the  exercise  of  the  right  may 
be  entirelj^  stopped  until  means  have  been 
taken  to  reduce  it  within  its  proper  lim- 
its. Wood,  Nuis.  804;  Add.  Torts,  §  209; 
Cawkwell  v.  Russell,  26  Law  J.  Exch.  34; 
Beard  v.  Murphy,  37  Vt.  99.  If  Brown 
abused  the  privileges  which  had  been  giv- 
en him  hy  using   these   pipes  as  a  chiinnel 


INJURIES  BY  ANIMALS. 


191 


for  noxious  and  offensive  matter,  instead 
of  surface  water,  and  thereby  created  a 
nuisance,  Crossland  bad  an  undoubted 
right,  after  due  notice,  to  go  either  upon 
the  premises  of  Brown,  or  on  his  own 
premises,  and  abate  the  nuisance  by  stop- 
ping up  the  drain,  thereby  preventing 
even  the  surface  water  from  flowing  there- 
in, until  13rown  reduced  his  use  thereof 
within  the  proper  limits.  Of  course,  a 
person  who  undertakes  to  abate  a  nui- 
sance proceeds  at  his  peril.  He  takes  the 
risk  of  being  able  to  show  that  the  thing 
complained  of  was  in  fact  a  nuisance.  If 
he  errs  in  judgment,  he  is  answerable  In 
damages,  and  if  a  breach  of  the  peace  is 
involved  he  is  liable  to  indictment  for  the 
result.  But,  creating  no  breach  of  tlie 
peace,  he  had  a  right  to  abate  this  nui- 
sance. The  noxious  matter  which  passed 
through  the  drain  under  the  road  came 
from  Brown's  premises.  It  was  his 
(Brown's)  duty  to  convey  it  to  the  river 
or  to  some  other  place  where  it  would  not 
become  offensive  and  injurious  to  the  pub- 
lic, and  when  he  received  notice  that  the 
drain  was  obstructed  it  was  his  duty  to 
stop  the  flow.  It  was  not  an  unlawful 
obstruction  of  the  drain  which  caused 
the  public  nuisance.  It  was  the  continued 
use  of  the  drain  by  Brown  after  he  knew 
it  was  obstructed  that  caused  the  over- 
flow into  and  upon  the  highway,  and  for 


this  Brown  was  responsible.  Brown's 
recourse,  if  he  had  any,  was  upon  Cross- 
land.  He  had  no  right  to  discharge  thft 
sewer  into  the  street.  The  borough  au- 
thorities of  Pottsville  had  no  more  right 
to  open  up  the  sewer  through  Crossland's 
property  than  Brown  had.  Their  attempt 
to  do  so  was  wholly  witliout  authority, 
and  in  denial  of  the  legal  rights  of  Cross- 
land,  who  had  a  clear  right  in  a  lawful 
and  peaceable  manner  to  protect  his 
property  against  the  unlawful  use  of  this 
drain  by  Brown,  and  against  the  unlaw- 
ful acts  of  any  other  person  who  might 
come  to  aid  in  perpet-rating  this  wrong 
upon  him.  Brown  was  the  offending  par- 
ty, and  the  officers  of  the  borough  should 
have  given  their  attention  to  him.  Thpy 
should  liave  obliged  him  to  abatethe  pub- 
lic nuisance  which  he  had  set  up  and  was 
steadily  maintaining. 

We  decide  this  case  upon  the  force  and 
effect  of  the  plaintiff's  testimony,  adopt- 
ing his  theory  of  the  case  as  the  correct 
one.  When  it  comes  to  be  tried  again, 
and  the  evidence  on  both  sides  is  submit- 
ted to  the  jury,  the  case  may  be  present- 
ed in  an  entirely  different  light.  The  court 
erred,  we  think,  in  submitting  the  case  to 
the  jury  with  binding  instructions  to  find 
for  the  defendant. 

Judgment  is  reversed,  and  a  venire 
facias  de  novo  awarded. 


(See,  also,  Larson  v.  Furlong,  50  Wis.  681,  8  N.  W.  Rep.  1;  63  Wis.  333,  23  K  W.  Rep.  584;  God- 
sell  V.  Fleming,  59  Wis.  52,  17  N.  W.  Rep.  679;  Brown  v.  Perkins,  12  Grav,  89;  Cole  v.  Kegler,  64  Iowa, 
59,  19  N.  W.  Rep.  843 ;  Griffith  v.  McCullum,  46  Barb.  561 ;  Brown  v.  De  Groff,  50  N.  J.  Law,  409, 14  AtL 
Rep.  219;  Roberts  v.  Rose,  4  Hurl.  &  C.  103;  Fields  v.  Stokley,  99  Pa.  St.  306:  Bowden  v.  Lewis,  13  R. 
L189.) 


INJURIES  BY  ANIMALS. 


(73  N.  Y.  195.) 

MuLiiER  V.  McKesson  et  al. 

(Court  of  Appeals  of  New  York.    April  2, 1878.) 

1.  Vicious  Aximals — Liabii.itt  for  Ixjdries. 

A  person  keeping  a  mischievous  or  vicious  ani- 
mal, with  knowledge  of  its  propensities,  is  bound 
to  keep  it  secure  at  his  peril.  He  cannot  excuse 
himself  from  liability  for  injuries  inflicted  by  it 
by  proof  of  due  care. 

2.  Same — Negligence  of  Co-Servant. 

The  negligence  of  a  servant  in  loosing  his  mas- 
ter's ferocious  dog  is  no  defense  to  an  action  for 
the  injury  caused  by  the  dog  to  a  fellow-servant, 
as  the  gravamen  of  the  action  is  the  keeping  of  a 
ferocious  animal  with  knowledge  of  its  nature, 
and  not  the  negligent  care  of  it. 

3.  Same — Negligence  of  Person  Injured. 

If  a  person,  with  full  knowledge  of  the  evil 
propensities  of  an  animal,  wantonly  excites  it, 
or  voluntarily  and  unnecessarily  puts  himself  in 
the  way  of  such  animal,  he  cannot  recover  for 
the  injuries  thereby  sustained  by  him,  but  the 
owner  will  not  be  excused  by  slight  negligence 
or  want  of  ordinary  care  of  the  person  injured. 

4.  Same. 

It  was  the  duty  of  plaintiff,  a  watchman  in 
defendants'  employ  at  their  factory,  to  open  the 
gate  of  the  yard'  every  morning  to  admit  the 
workmen.  In  such  yard  defendants  kept  a  fero- 
cious Siberian  blood-hound,  which  was  usually 
loosed  at  night  to  protect  the  premises,  and 
chained  during   the   day.     Defendants'  engineer 


had  charge  of  the  dog,  and  it  was  his  custom  to 
notify  plaintiff  when  the  dog  was  loose.  Plain- 
tiff, while  proceeding  across  the  yard  in  the  cus- 
tomary manner  to  open  the  gate,  and  having  no 
knowledge  that  the  dog  was  loose,  was  attacked 
by  it  and  severely  injured.  Held,  that  plaintiff 
was  not  bound  to  look  and  see  that  the  dog  was 
fastened  before  going  into  the  yard,  and  that  he 
was  entitled  to  recover  from  defendants  for  his 
injuries. 

5.  Master  and  Servant— Risk  of  Employment. 
A  person  in  the  employ  of  another,  charged 
with  specific  duties,  does  not,  while  in  the  per- 
formance of  such  duties,  assume  the  risk  of  in- 
jury from  a  vicious  animal  liept  by  the  employer, 
which  he  is  informed  will  be  kept  fastened. 

Appeal  from  supreme  court,  general 
term,  second  department. 

Action  by  August  .Muller  against  John 
McKesson  and  others  for  damages  sus- 
tained by  the  bite  of  a  savage  and  fero- 
cious dog  owned  and  kept  by  defendants. 
The  jury  found  a  verdict  for  plaintiff,  and 
judgment  was  entered  thereon,  and  was 
affirmed  upon  appeal  to  the  general  term. 
10  Hun,  44.  From  tlie judgment  of  the  gen- 
eral term  deiendants  appealed. 

Charles  H.  Mundyjov  appellants.  Fred- 
erick A.  Ward,  for  respondent. 

Chukch,  C.  J.    The    defendants  had  a 


192 


LAW  OF  TORTS. 


chemical  factory  in  Brool^lyn,  and  owned 
a  ferocious  doj;  of  the  Siberian  blood- 
hound species,  which  was  kept  in  the  in- 
closed yard  surrounding  the  factory,  and 
generally  kept  fastened  up  in  day-time 
and  loosed  at  night  as  a  protection 
against  thieves.  The  plaintiff  was  in  the 
employ  of  the  defendants  as  a  night  watch- 
man. It  was  his  duty  to  open  the  gate  to 
the  yard  every  morning  to  admit  the 
workmen,  and  to  do  this  he  would  pass 
from  the  door  of  the  factory  across  a  cor- 
ner of  the  yard  to  the  gate.  On  the  morn- 
ing in  question,  as  the  plaintiff  was  re- 
turning from  opening  the  gate,  he  was  at- 
tacked from  behind  by  the  dog,  thrown  to 
the  ground,  and  severely  bitten;  and  after 
freeing  himself,  and  while  endeavoring  to 
reach  the  factory,  was  again  attacked, 
and  bitten  and  seriously  injured.  Upon 
the  close  of  the  evidence,  and  after  a  mo- 
tion for  a  nonsuit  had  been  denied,  tlie 
judge  decided  that  there  was  no  question 
for  the  jury  but  tlie  question  of  damages, 
to  which  there  was  an  exception.  It  is 
questionable  whether  this  exception  is 
available  to  the  defendants  in  this  court. 
After  the  defendants  had  asked  the  court 
to  determine  the  questions  as  matters  of 
law  in  his  favor  on  a  motion  for  a  nonsuit, 
and  tliey  afterwards  desired  such  ques- 
tions to  be  submitted  to  the  jury  as  ques- 
tions of  fact,  it  was  their  duty  to  have 
specified  the  questions  which  they  desired 
to  have  submitted.  O'Neill  v.  James, 43  N. 
y.  84-93;  Winchell  v.  Hicks,  IS  N.  Y.  55S. 
The  court  might  have  assumed  that  the 
defendants  rested  upon  their  legal  propo- 
sitions, and  thus  have  been  misled.  It 
would  be,  perhaps,  rather  rigorous  to  en- 
force this  rule  in  this  particular  case,  and 
we  have  concluded  to  waive  its  applica- 
tion. 

The  points  urged  by  the  appellants  in 
this  case  are — First,  that  the  plaintiff  was 
guilty  of  contributorj'  negligence,  or  at 
least  that  the  evidence  would  have  war- 
ranted the  jury  in  so  finding;  second,  that 
the  i)laintiff  knew  the  vicious  habits  of 
the  dog,  and  by  voluntarily  entering  upon 
and  continuing  in  the  emploj'ment  of  the 
defendants  he  assumed  the  risk  of  such  ac- 
cidents; third,  that  if  the  injury  was 
occasioned  by  the  negligence  of  tlie  en- 
gineer in  not  properly  fastening  the  dog, 
or  in  omitting  to  notify  the  plaintiff  that 
he  was  loose,  it  was  the  negligence  of  a 
co-servant,  for  which  the  defendants  are 
not  liable. 

It  may  be  that,  in  a  certain  sense,  an  ac- 
tion against  the  owner  for  an  injury  hy  a 
vicious  dog  or  other  animal  is  based  upon 
negligence;  but  such  negligence  consists, 
not  in  the  manner  of  keeping  or  confining 
the  animal,  or  the  care  exercised  in  respect 
to  confining  him,  but  in  the  fact  that  he  is 
ferocious,  and  that  the  owner  knows  it, 
and  proof  that  he  is  of  a  savage  and  fero- 
cious nature  is  equivalent  to  express  no- 
tice. Earl  v.Van  Alstine.S  Barb.G30.  The 
negligence  consists  in  keeping  such  an  ani- 
mal. In  May  v.  Burdett,  9  Adol.  &  E.  (N. 
S.)  101,  Denman,  C.J., said:  "Butthecon- 
■^lusion  to  be  drawn  from  an  examination 
of  all  the  authorities  appears  to  us  to  be 
this:  that  a  person  keeping  a  mischievous 
animal,  with   knovv  ledge  of  its  propensi- 


ties, is  bound  to  keep  it  secure,  at  his  periU 
and  that,  if  he  does  mischief,  negligence  is 
presumed."  When  accustomed  to  bite  per- 
sons, a  dog  is  a  public  nuisance,  and  may 
be  killed  by  any  one  when  found  running 
at  large.  Putnam  v.  Payne,  13  Johns. 
312;  Brown  v.  Carpenter,  26  Vt.638.  And, 
when  known  to  the  owner,  corresponding 
obligations  are  imposed  upon  him.  Lord 
Hale  says  :  "  He  [the  owner]  must,  at  his 
own  peril,  keep  him  safe  from  doing  hurt, 
for  though  he  use  his  diligence  to  keep  him 
up,  if  he  escape,  and  do  harm,  the  owner 
is  liable  in  damages."  In  Kelly  v.  Til  ton, 
2  Abb.  Dec.  495,  Wright,  J.,  said:  "If 
a  person  will  keep  a  vicious  animal,  with 
knowledge  of  its  propensities,  he  is  bound 
to  keep  it  secure  at  his  peril."  In  Wheeler 
V.  Brant,  23  Barb.  324,  Judge  Balco.m 
said:  "Defendant's  dog  was  a  nui.'sance, 
and  so  are  all  vicious  dogs,  and  their  own- 
ers must  either  kill  them,  or  confine  them 
as  soon  as  they  know  their  dangerous 
habits,  or  answer  in  damages  for  their  in- 
juries." lu  Card  v.  Case.  57  E.  C.  L.  622, 
CoLTMAN,  J.,  said  "that  the  circumstances 
of  the  defendants  keeping  the  animal  neg- 
ligently is  not  essential;  butthe^raF^me/? 
IS  the  keeping  the  ferocious  animal,  know- 
ing its  propensities."  The  cases  are  uni- 
form in  this  doctrine,  although  expressed 
in  a  variety  of  language  by  different 
judges.  Smith  v.  Pelah,  2  Strange,  1264; 
Jones  V.  Perrv,  2  Esp.  4S2;  Greason  v. 
Keteltas,  17  N.  Y.  496;  Woolf  v.  Chalker,  31 
Conn.  121 ;  Blackman  v.  Simmons,  3  Car. 
&  P.  138;  Rider  v.  White,  65  N.  Y.  54. 

In  some  of  the  cases  it  is  said  that  from 
the  vicious  propensity,  and  knowledge  of 
the  owner,  negligence  will  be  presumed, 
and  in  others  that  the  owner  is  prima  fa- 
cie liable.  This  language  does  not  mean 
that  the  presumption  or  prima  facie  case 
may  be  rebutted  by  proof  of  any  amount 
of  care  on  the  part  of  the  owner  in  keep- 
ing or  restraining  the  animal,  and,  unless 
he  can  be  relieved  by  some  act  or  omis- 
sion on  the  part  of  the  person  injured,  his 
liability  is  absolute.  "This  presumption 
of  negligence,  if  it  can  be  said  to  arise  at 
all,  so  as  to  be  in  any  way  material  in  a 
case  where  the  owner  is  absolutely  bound, 
at  his  own  peril,  to  prevent  mischief,  is  a 
presumptio  Juris  et  dejure,  against  which 
no  averment  or  proof  is  receivable.  It  is 
not  a  'presumption,'  in  the  ordinary  sense 
of  the  word,  raising  a  prima  facie  case 
which  may  be  rebutted."  Card  v.  C^e, 
supra,  p.  623,  note  b.  It  follows  that  the 
doctrine  of  non-liability  arising  from  the 
negligence  of  a  co-servant  in  not  properly' 
fastening  the  animal,  or  in  not  giving  no- 
tice of  his  being  loose,  cannot  be  Invoked, 
for  the  reason  that,  the  negligence  of  the 
master  being  immaterial,  that  of  his  serv- 
ant must  be  also. 

The  point  as  to  contributory  negligence 
presents  the  most  difficulty  There  are  ex- 
pressions in  some  of  the  cases  indicating 
that  the  liability  of  the  owner  is  not  affect- 
ed bv  the  negligence  of  the  person  injured. 
In  Smith  v.  Pelah,  2  Strange,  1264,  the 
owner  was  held  liable,  although  the  injury 
happened  by  reason  of  the  person  injured 
treading  on  the  dog's  toes,  the  chief  jus- 
tice saying:  "For  it  was  owing  to  his 
not  hanging  the  dog  on  the  first  notice." 


IXJUJUES  BY  ANIMALS. 


193 


£tlsnot  stated  that  the  person  injured 
knew  of  the  doj^'s  propensities,  or  that  it 
was  done  intentionally.  In  ^yoolf  v. 
Chalker,  31  Conn.  loO,  it'  is  said  tliat  the 
owner  is  liable,  "irrespective  of  any  ques- 
tions of  nc;;lisence  of  the  plaintiff;"  and 
citing  May  v.  Bui-dett  and  Card  v.  Case, 
supra. 

In  May  v.  Burdett  the  chief  justice,  after 
api)roving  of  the  ruling  in  Smith  v.  Pelah, 
2  Strange,  supra,  ami  a  passa^•e  from 
Hale's  Pleas  of  the  Crown,  (pajxe  430,)  ] 
said:  "It  may  be  that  if  the  injury  was 
solely  occasioned  by  the  willfulness  of  the  , 
plaintiff,  after  warning,  that  may  be  a  j 
ground  of  defense,  but  it  is  unnecessary  to 
give  any  opinion  as  to  tliis. "  It  is  not 
intimated,  as  before  stated,  in  Smith  v. 
Pelah,  that  the  treadiny:on  the  toes  of  the 
doLi;  was  done  intentionally,  or  with 
knowledg-e  of  his  viciousness ;  and  I  do 
not  think  that  it  can  be  claimed  from  au- 
thority, and  certainly  not  from  principle, 
that  no  act  of  the  person  injured  would 
preclude  him  from  recovering,  liowever 
negligent  or  willful.  The  apparent  con- 
flict on  this  point  arises,  I  think,  mainly 
in  not  making  a  proper  application  of  the 
language  to  the  facts  of  the  particular 
case.  If  a  person,  with  full  knowledge  of 
the  evil  propensities  of  an  animal,  wanton- 
ly excites  him,  or  vt)luntarily  and  unneces- 
sarily puts  himself  in  the  way  of  such  an 
animal,  he  would  be  adjudged  to  have 
brought  the  injury  upon  himself,  and 
ought  not  to  be  entitled  to  recover.  In 
such  a  ease  it  cannot  be  said,  in  a  legal 
sense,  that  the  keeping  of  the  animal, 
which  is  the  ^rav;imen  of  the  offense,  pro- 
duced the  injurv.  Coggswell  v.  Baldwin, 
1.")  Vt.  404;  Konev  v.  "Ward,  36  How.  Pr. 
25.t;  Wheeler  v.  Brant,  23  Barb. 324;  Black- 
man  v.  Simmons,  3  Car.  &  P.  138;  Brock 
V.  Copeland,  1  Esp.  203;  Bird  v.  Holbrook, 
4  Bing.  62S. 

But  as  the  owner  is  held  to  a  rigorous 
rule  of  liability  on  account  of  the  danger 
to  human  life  and  limb,  by  harboring  and 
keeping  such  animals,  it  follows  that  he 
ought  not  to  be  relieved  from  it  by  slight 
negligence  or  want  of  ordinarj'  care.  To 
enable  an  owner  of  such  an  animal  to  in- 
terpose this  defense,  acts  should  be  proved, 
with  notice  of  the  characterof  the  animal, 
which  would  establish  that  the  person  in- 
jured voluntarily  brought  the  calamity 
npcjn  himself.  Brock  v.  Copeland,  1  Esp. 
203,  cited  and  relied  upon  by  the  counsel 
for  the  appellant,  is  in  some  of  its  features 
like  this;  and,  while  some  of  the  language 
of  Lord  Kknvon  is  not  in  harmony  with 
that  used  in  other  cases,  yet  from  the  facts 
stated  it  is  fairly  inferable  that  the  fore- 
man voluntarily  went  into  the  j-ard  at  an  ; 
unusual  time,  and.  so  far  as  appears, 
without  business,  knowing  that  the  dog  j 
was  loose,  and  knowing  his  ferocious  nat- 
ure. The  (luestion,  then,  recurs  whether, 
from  the  facts  appearing  in  this  case,  the 
jury  would  .ave  been  justified  in  finding 
that  the  plaintiff  was  guilty  of  that  kind 
5f  negligence  which  would  relieve  the  de- 
fendants; in  other  words, could  they  have 
foMiid  that,  in  any  proi)er  sense,  the  plain- 
tiff brought  the  injury  u[)on  himself?  He 
was  in  dischai'ge  of  his  duty,  at  the  prop- 
er time  and  in  the  right  place.     He  passed 

CHASE — 13 


from  the  factory  to  the  gate  in  the  direct 
path,  and  was  returning  when  he  was  at- 
tacked by  the  dog.  In  P.lackman  v.  Sim- 
mons, 3  Car.  &  P.  138,  the  injury  was  by  a 
vicious  bull,  and  the  court  laid  strpss  up- 
on the  circumstance  that  the  plaintiff  was 
traveling  where  he  had  a  right  to  go,  and 
said:  "If  the  plaintiff  had  gone  where  he 
had  no  right  to  go,  that  might  have  been 
an  answer  to  the  action."  It  was  not 
shown  that  the  plaintiff  was  out  of  his 
place;  nor,  what  was  more  important 
aud  indispensable,  was  it  shown  that  the 
plaintiff  had  notice  that  the  dog  wa.s 
loose,  or  that  he  had  reason  to  suppose 
that  he  was  loose.  It  was  the  custom  oi 
Godfrej',  the  engineer,  to  loose  the  dog  at 
night  and  fasten  him  in  the  morning,  and 
to  notify  the  plaintiff  when  the  dog  was 
loose.  No  such  notice  was  given.  The 
plaintiff  testifies  positively  that  he  did  not 
know  or  supfjose  the  dog  was  loose;  and 
from  the  evidence  of  Godfrey,  called  by 
the  defendants,  it  is  inferable  that  the  dog 
had  not  been  loosed  for  several  days,  and, 
if  it  had,  the  plaintiff  had  a  right  to  sup- 
pose that  Godfrey  had  fastened  him  that 
morning.  It  is  sufficient  to  say  that  the- 
evidence  did  not  show  that  the  plaintiff 
had  notice  that  the  dog  was  loose,  nor- 
were  the  circumstances  such  as  to  induce 
him  to  believe  that  such  was  the  fact.  If 
the  negligence  of  the  plaintiff  is  to  prevail, 
it  must  be  predicated  upon  not  taking  the 
precaution  to  look,  examine,  and  ascer- 
tain whether  the  dog  was  fastened  or  not. 
The  plaintiff  might  have  ascertained  by- 
examination  whether  the  dog  was  fas- 
tened in  his  kennel  or  not;  but  I  do  not 
think  that  he  was  bound  to  exercise  that 
degree  of  care,  or  that  the  defendant  can 
be  relieved  from  liability  because  ha  did 
not. 

It  does  not  appear  that  such  had  been 
his  habit,  or  that  his  attention  had  been 
called  to  any  circumstance  to  call  for  un- 
usual precaution.  Theevidencemust  have 
been  sufficient  to  warrant  the  jury  in  find- 
ing actual  notice  that  the  dog  was  loose, 
or,  at  least,  that  the  plaintiff  had  reason  to 
so  believe.  This  rule  is  quite  as  liberal  as 
ought  to  be  adopted  in  favor  of  a  person 
who  keeps  an  animal  of  such  savageferoc- 
itv  as  this  was  found  to  be.  Ilott  v. 
Wilkes,  3  Barn.  &  Aid.  308,  and  Bird  v. 
Holbrook.  4  Bing.  (528,  were  both  cases  of 
spring  guns.  In  the  former  the  person 
injured  had  notice,  and  in  the  latter, 
though  a  trespasser,  he  had  not;  and  the 
action  was  held  maintainable  in  the  lat- 
ter, and  not  in  the  former.  Bkst,  C.  J., 
sat  in  both  cases,  and  in  the  last  said  :  "  If 
anything  which  fell  from  me  in  Ilott  v. 
Wilkes  were  at  variance  with  the  opinion 
I  now  express,  I  should  not  hesitate  to 
retract  it;  but  the  ground  on  which  the 
judgment  of  the  court  turned  in  that  case 
is  decisive  of  the  present,  and  I  should 
not  have  labored  the  point  that  the  action 
was  not  maintainable  in  that  case,  on 
the  ground  that  the  plaintiff  had  received 
notice,  unless  I  had  deemed  it  maintaina- 
ble if  no  notice  had  been  given."'  In  the 
former  case  Hoi.rovp,  J.,  expresses  the 
principle  of  non-liability,  when  notice  has 
been  given,  to  be  that  the  act  which  pro- 
duced the  injury  to  the  plaintiff  "must  be 


194 


LAW  OF  TOKTS. 


considered  wholly  as  his  act,  and  not 
the  act  of  the  person  who  placed  the  gun 
there. " 

As  "  negligence, "  in  the  ordinary  sense, 
is  not  the  ground  of  liability,  so  contribu- 
tory negligence,  in  its  ordinary  meaning, 
is  not  a  defense.  These  terms  are  not  used 
in  a  strictlj^  legal  sense  in  this  class  of 
ac'ions,  but  for  convenience.  There  is 
considerable  reason  in  favor  of  the  doc- 
trine of  absolute  liability  for  injuries  pro- 
duced by  a  savage  dog.  whose  propensi- 
ties are  known  to  the  owner,  on  the 
ground  of  its  being  in  the  interest  of  hu- 
manity, and  out  of  regard  to  the  sanctity 
of  human  life;  but  as  these  animals  have 
different  degrees  of  ferocity,  and  the  rule 
must  be  a  general  one,  I  think,  in  view  of 
all  the  authorities,  that  the  rule  of  liabili- 
ty before  indicated  is  a  reastjuable  one, 
and  that  the  owner  cannot  be  relieved 
from  it  by  any  act  of  the  person  injured, 
unless  it  be  one  from  which  it  can  be  af- 
firmed that  he  caused  the  injury  himself, 
with  a  full  knowlege  of  its  probable  con- 
sequences. 

The  evidence  in  this  case  falls  far  short 
of  warranting  a  verdict  that  the  plaintiff 
had  committed  any  such  act.  As  oefore 
stated,  he  had  no  notice  that  the  dog  Avas 
loose,  but  had  everj'  reason  to  suppose 
that  he  was  fastened,  and  did  in  fact  sup- 
pose so.  He  was  in  the  discharge  of  his 
duty,  and  was  not  called  upon  to  insti- 
tute an  inquiry  whether  the  dog  had  bro- 
ken his  fastenings,  or  that  Godfrey  had 


been  negligent  in  not  giving  him  notice 
that  the  dog  was  loose. 

The  remaining  point,  that  the  plaintiff 
assumed  the  risk  of  such  accidents,  is  not 
tenable.  The  rule  is  that  a  servant  as- 
sumes the  ordinary  risks  incident  to  the 
business  in  which  he  engages.  What  were 
the  risks  of  his  employment  here,  as  it  re- 
spects the  dog?  He  was  informed,  it  is 
true,  of  the  nature  of  the  animal,  but  he 
was  also  told  that  the  dog  would  be  kept 
fastened,  and  the  uniform  habit  was  to 
notify  him  "when  the  dog  was  loose.  By 
the  terms  of  his  emploj^ment,  and  the  con- 
duct of  those  who  represented  the  defend- 
ants, the  most  that  can  be  said  is  that  he 
assumed  the  risks  consequent  upon  the 
keeping  of  a  ferocious  dog,  which  was  kept 
fastened  except  when  he  was  otherwise 
notified.  Beyond  this  the  plaintiff  is  en- 
titled to  the  same  protection  as  other 
persons.  This  is  not  a  case  for  relaxing 
the  rule  of  liability.  The  dog  was  of  im- 
mense size,  and  a  brute  as  savage  as  a  ti- 
ger or  a  lion,  and  should  be  more  properly 
classed  with  such  wild  beasts  than  with 
j  the  domestic  dog,  which,  although  use- 
I  less,  is  generally  comparatively  harmless. 
I  He  had  no  respect  for  persons.  In  the  lan- 
guage of  the  person  who  sold  him  to  de- 
fendants, "he  bit  everybody."  There  is  no 
legal  excuse  for  exposing  human  life  to  the 
ferocity  of  such  an  animal.  The  judgment 
must  be  affirmed.  All  concur,  except  Ra- 
PALi-O,  ,7.,  absent. 
Judgment  affirmed. 


(See,  also.  May  v.  Burdett,  9  Q.  B.  101;  Filburn  v.  People's  Palace,  etc.,  Co.,  25  Q.  B.  Div.  258; 
Lynch  v.  McNally,  73  N.  Y.  347;  Perkins  v.  Mossman,  44  N.  J.  Law,  579;  Spring  Co.  v.  Edgar,  99  U. 
S.'645;  Godeau  v.  Blood.  52  Vt.  251;  Twigg  v.  Jtlyland,  62  Md.  3S0;  Laherty  v.  Hogan,  13  Daly,  533; 
Woolf  v.  Chalker,  31  Conn.  127.) 


TRESPASS  TO  PERSOISTAL  PROPERTY. 


I.  WHAT  CONSTITUTES  A  TRESPASS. 


(37  Ala.  430.) 

White  v.  Brantley. 

(Supreme  Court  of  Alabama.    Jan.  Term,  1861.) 

Trespass   to   Personal   Property  —  Property 
Subject  of  Action. 
An  action  of  trespass  lies  by  the   owner  of  a 
dog  for  destroying  it,  though   not  at  the  time  in 
his  possession,  but  loaned  to  another. 

Appeal  from  circuitcourt,  Dallas  county. 

Action  of  trespass  by  White  against 
Brantley  for  killing  plaintiff's  dog.  De- 
fendant pleaded  that  the  dog,  at  the  time 
of  the  alleged  killing,  was  not  in  plaintiff's 
possession.  Plaintiff  replied  that  the  dog 
was  in  the  possession  of  a  certain  third 
person  under  a  loan  from  plaintiff.  Judg- 
ment was  given  for  defendant  upon  the 
pleadings,  which  plaintiff  assigned  as  er- 
ror. 

Walker,  C.  J.    Dogs  are  animals  dow- 


ita3  Diiturse,  and  although  they  may  not 
be,  in  the  estimation  of  the  common  law% 
of  such  value  as  that  the  stealing  of  them 
amounts  to  larcenj',  yet  an  action  at  law 
lies  for  destroying  them.  There  is  no  dis- 
tinction between  them  and  other  chattels, 
as  to  the  possession  necessary  to  the 
maintenance  of  an  action  of  trespass. 
There  is  a  distinction  as  to  animals  ferse 
nuturse;  but  dogs  are  not  animals  ferse 
nnturse.  4  BI.  (^omm.  230;  Ireland  v.  Hig- 
gins,  Cro.  Eliz.  125;  Wright  v.  Ramscot,  1 
Saund.  85;  Case  of  Swans,  7  Coke,  18; 
Parker  v.  Mise,  27  Ala.  480.  It  follows 
that,  to  the  maintenance  of  this  action, 
it  was  not  requisite  that  the  plaintiff 
should  have  had  actual  possession  of  the 
dog.  If  he  was  the  owner  of  the  dog,  and 
the  dog  was  loaned  out  at  the  time,  the 
general  property,  "prima  facie,  as  to  all 
civil  purposes,  draws  to  it  the  possession. " 
Reversed  and  remanded. 


TRESPASS  TO  PERSONAL  PROPERTY. 


195 


(13  Me.  67.) 

HoBART  V.  Haggiot,  (in  part.) 

{Supreme  Judicial  Couit  of  Maine.    April  Term, 
1635. ) 

Trespass  to  Personal  Property — Intent — Mis- 
take. 
A  mistake  will  not  excuse  a  trespass,  nor  is 
the  intent  material.  Where  there  is  a  mistake 
between  the  seller  and  purchaser  as  to  the  article 
sold,  the  seller  supposing  he  has  sold  one  article 
while  the  purchaser  supposes  he  has  bought  an- 
other, of  which  he  takes  possession,  he  will  be 
liable  in  trespass. 

Exception.s  from  court  of  common  pleas. 

Action  of  trespass  for  taking  and  con- 
verting an  ox,  the  property  of  plaintiff. 
It  appeared  at  the  trial  that  plaintiff  sold 
defendant  an  ox,  and  told  him  to  go  to 
his  place  and  take  it,  and  that  defendant 
went  and  took  out  of  plaintiff's  field  an 
ox  which  he  supposed  was  the  one  he  pur- 
chased. Plaintiff  claimed  and  testified 
that  such  ox  was  not  the  one  he  intended 
to  sell,  or  supposed  defendant  considered 
himself  as  buying.  The  court  instructed 
the  jury  that  if  they  w pre  satisfied  that 
tliere  had  been  an  innocent  mistake  be- 
tween the  parties,  and  that  defendant  had 
supposed  he  had  purchased  the  ox  in  ques- 
tion when  in  fact  plaintiff  supposed  he 
was  not  selling  that  ox,  but  another,  they 
would  find  for  plaintiff,  to  which  de- 
fendant excepted.  The  verdict  was  for 
plaintiff  for  the  value  of  the  ox  taken. 
Defendant  alleged  exceptions. 

Fesseuden  &  Deblois,  for  plaintiff.  Mr. 
Dnveis,  for  defendant. 

Parris,  J.  The  ox  taken  by  defendant 
was  the  property  of  the  plaintiff,  and  al- 
though the  defendant  attempted  to  prove 
that  he  purchased  that  ox,  and  conse- 
quently had  a  right  to  takeit,the  attempt 
wholly  failed.  He  may  have  considered 
himself  as  the  purchaser,  hut,  unless  the 
plaintiff  assented  toit.no  property  passed. 
The  assent  of  both  minds  was  necessary 
to  make  the  contract.  The  court  below 
charged  the  jury  that  if  they  were  satisfied 
there  had  been  an  innocent  mistake  be- 
tween tiie  parties,  and  that  the  defendant 
had  supposed  he  had  purchased  the  ox  in 
<luestion  when  in  fact  the  plaintiff  sup- 
posed he  was  not  selling  that  ox,  but  an- 
other, tliat  they  would  find  for  the  plain- 
tiff. The  jury,  having  found  for  the  plain- 
tiff, have  virtually  found  that  he  did  not 
sell  the  ox  in  controversy,  and  the  ques- 
tion is  raised  whether  the  defendant  is 
liable  in  trespass  for  having  taken  it  by 
mistake.  It  is  contended  that,  where  the 
act  complained  of  is  involuntary  and  with- 
out fault,  trespass  will  not  lie,  and  sun- 
dry authorities  have  been  referred  to  in 
sur)port  of  that  position. 

But  the  act  complained  of  in  this  case 
was  not  involuntarj'.  The  taking  the 
plaintiff's  ox  was  the  deliberate  and  vol- 
untary* act  of  the  defendant.  He  migi'.t 
not  have  intended  to  commit  a  trespass 
in  so  doing.  Neither  does  the  officer,  when 
on  a  precept  against  .\.  lie  takes  by  mis- 
take tiie  property  of  B.,  intend  to  commit 
a  trespass;  nor  does  he  intend  to  become 
a  trespasser  who,  believing  that  he  is  cut- 
ting timber  on  his  own  land,  by  mistak- 
ing the  line  of  division   cuts  on   his  neigh- 


bor's land ;  and  yet,  in  both  cases,  the 
law  would  hold  them  as  trespassers.  The 
case  of  Higginson  v.  York.  ~)  Mass.  341, 
was  still  stronger  than  either  of  those 
above  supposed.  In  that  case,  one  Ken- 
niston  hired  the  defendant  to  take  a  cargo 
of  wood  from  Burntcoat  island  to  Boston. 
Kenniston  went  with  the  defendant  to  the 
island,  where  the  latter  took  tlie  wood 
on  board  his  vessel,  and  transported  it  to 
Boston,  and  accounted  for  it  to  Kennis- 
ton. It  turned  out  on  trial  that  one  Phin- 
ney  had  cut  this  wood  on  the  plaintiff's 
laud  without  right  or  authority,  and  sold 
it  to  Kenniston.  York,  the  defendant, 
was  held  liable  to  the  plaintiff  for  the 
value  of  the  wood  in  an  action  of  trespass, 
although  it  was  argued  that  he  was  ig- 
norant of  the  original  trespass  committed 
by  Phinuey.  A  mistake  will  not  excuse  a 
trespass.  Though  the  injur3'  has  proceed- 
ed from  mistake,  the  action  lies,  for  there  is 
some  fg.ult  from  the  neglect  and  want  of 
proper  care,  and  it  must  have  been  done 
voluntarily.  Basely  v.Clarkson,  i!  Lev. 37. 
Nor  is  tlie  intent  or  design  of  the  wrong- 
doer the  criterion  as  to  the  form  of  reme- 
dy, for  there  are  many  cases  in  the  books 
where,  the  injury  being  direct  and  immedi- 
ate, trespass  has  been  holden  to  lie,  though 
the  injury  were  not  intentional,  as  in 
Guille  v.Swan,  19  Johns.  .3S1,  where  the  de- 
fendant ascended  in  a  balloon,  which  de- 
scended into  the  plaintiff's  garden,  and  the 
defendant,  being  entangled  and  in  a  peril- 
ous situation,  called  for  help,  and-  a  crowd 
of  people  broke  through  the  fences  into 
the  plaintiff's  garden,  and  beat  and  trod 
down  his  vegetables,  the  defendant  was 
held  answerable  in  trespass  for  all  the 
damages  done  to  the  garden.  In  this  case 
Spencer,  C.  J.,  said:  "The  intent  with 
which  an  act  is  done  is  by  no  means  the 
test  of  the  liability  of  a  partj'to  an  action 
of  trespass.  If  the  act  cause  the  immedi- 
ate injury,  whether  it  was  intentional  or 
unintentional,  trespass  is  the  proper  ac- 
tion to   redress   the  wrong."    See,   also,  1 

Poth.  art.  1,  5  1 ;  1  Sum.  219,  307. 

»*«        *        *•*        ♦ 

The  exceptions  are  overruled,  and  there 
must  be 
Judgment  on  the  verdict. 


(6  Wis.  320.) 
Dexter  v.  Cole. 

{Supreme  Court  of  Wiscoiisin.    Jan.  Term,  185S.) 

1.  Trespass  to  Personal  Property  —  Intent — 

Mistake. 
To  maintain  trespass  de  bonis  asportatis,  actual 
forcible  dispossession  of  propertj  is  not  necessary ; 
any  unlawful  interference  with  or  exercise  of  acts 
of  ownership  over  property,  to  the  exclusion  of  the 
owner,  will  constitute  trespass,  though  there  was 
no  wrongful  intent,  and  the  property  was  taken 
accidentally  or  by  mistake. 

2.  Same. 

Plaintiff's  sheep,  running  at  large  in  the  high- 
way, became  mixed  with  sheep  which  defendant 
was  driving  to  market.  Defendant  separated  all 
but  four  of  them,  which  he  drove  to  market  with 
his  flock.     Held,  that  he  was  liable  in  trespass. 

Error  to  circuit  court,  Milwaukee  coun- 
ty. 

Action  of  trespass  by  D.  H.  Dexter 
against  James  Cole  fortaking  and  driving 


196 


LAW  OF  TORTS. 


away  22  sheep,  the  property  of  plaintiff. 
On  the  trial  before  a  justice  of  the  peace 
and  a  jury,  it  appeared  that  plaintiff's 
sheep,  running:  at  larg;e  in  the  higliway, 
became  mixed  with  a  larger  flock  which 
defendant  was  driving  to  market;  where- 
upon defendant  drove  the  whole  flock  in- 
to a  yard  to  separate  them,  and  threw 
out  a  number  which  he  did  not  claim,  and 
drove  the  rest  to  market  and  slaughtered 
them.  The  evidence  tended  to  show  (and 
it  appeai'ed  from  the  verdict  that  the  jury 
so  found)  that  four  of  plaintiff's  sheep  re- 
mained in  the  flock,  and  were  slaughtered 
with  the  rest.  The  judgment  for  plaintiff 
was  reversed  upon  certiorari.  Plaintiff 
sued  out  a  writ  of  error. 

Jnmes  H.  Paine  &  Son,  for  plaintiff  in  er- 
ror. Butler,  Buttricli  &  Cottrill,  for  de- 
fendant in  error. 

Cole,  J.  We  haveno  doubtbut  that  the 
action  of  trespass  would  lie  in  this  case.  In 
driving  off  the  sheep  the  defendant  in  er- 
ror, without  doubt,  unlawfully  interfered 
witli  the  property  of  Dexter;  and  it  has 
been  frequently  decided  that,  to  maintain 
trespass  de  bonis  asportatis,  it  was  not 
necessary  to  prove  actual,  forcible  dis- 
possession of  property;  but  that  evidence 
of  any  unlawful  interference  with,  or  exer- 
cise of  acts  of  ownership   over,  property, 


to  the  exclusion  of  the  owner,  would  sus- 
tain the  action.  Gibbs  v.  Chase,  10 
Mass.  128;  Millar  v.  Baker,  1  Mete.  (Mass.) 
27;  Phillips  v.  Hall,  8  Wend.  610;  Mor- 
gan v.  Varick,  Id.  587;  Wintringham  v. 
Lafoy,  7  Cow.  735;  Reynolds  v.  Shuler, 
5  Cow.  325;  I  Chitty,  PI.  (llth  Amer.  Ed.) 
170,  and  cases  cited  in  the  notes.  Neither 
is  it  necessary  to  prove  that  the  act  was 
done  with  a  wrongful  intent,  it  being  suffi- 
cient if  it  was  without  a  justifiable  cause 
or  purpose,  though  it  were  done  accident- 
ally or  by  mistake.  2  Greenl.  Ev.  §  622; 
Guille  V.  Swan,  19  Johns.  381.  There  is 
nothing  inconsistent  with  these  authori- 
ties in  the  case  of  Parker  v.  Walrod,  13 
Wend.  296,  cited  upon  the  brief  of  the  coun- 
sel for  the  defendant  in  error. 

Upon  the  other  point  in  the  case  we 
think  there  was  some  evidence  to  support 
the  verdict  of  tlie  jury,  and  therefore  the 
judgment  of  the  justice  should  not  be  re- 
versed because  the  proof  was  insufficient. 
It  was  the  province  of  the  jury  to  weigh 
the  evidence,  and  determine  what  facts 
were  established  by  it;  and  the  county 
court  ought  not  to  reverse  the  judgment, 
because  the  proof  was  not  sufficient  in  its 
opinion  to  justif^x  the  finding  of  the  jury. 

The  judgment  of  the  county  court  is 
therefore  reversed,  and  the  judgment  of 
the  justice  affirmed. 

(See,  also,  Ely  v.  Ehle,  3  N.  Y.  507;  HaythorD  v.  Rushforth,  19  N.  J.  Law,  160;  Kirk  v.  Gregory, 
1  Exch.  Div.  55;  Fouldes  v.  Willoughby,  8  Mees.  &  "W.  5-tO;  Gilman  v.  Emery,  54  Me.  460;  Bruch  v. 
Carter,  33  N.  J.  Law,  554;  Burgess  v.  Graffam,  18  Fed.  Rep.  251;  Welsh  v.  Bell,  33  Pa.  St.  13;  Stanley 
V.  Gaylord,  1  Gush.  536.) 


II.  IS  AN  INJURY  TO  THE  RIGHT  OF  POSSESSION. 


(13  Me.  336.) 

LuNT  et  al.  V.  Brown. 

(Supreme  Judicial  Court  of  Maine.    May  Term, 
1836.) 

1.  Trespass  to  Personal  Property — Possession 

OR  Right  to  Possession. 
A  person   cannot  maintain  trespass   for  taking 
personal  property,  unless  at  the  time  of  the  tak- 
ing he  had  either  actual  or   constructive   posses- 
sion, or  a  right  to  the  immediate  possession. 

2.  Same. 

Where  personal  property  is  left  in  the  posses- 
sion of  another  under  an  agreement  for  a  speci- 
fied time,  the  owner  cannot  maintain  trespass 
against  a  third  person  for  taking  such  property 
during  such  time. 

Exceptions  from  court  of  common  pleas. 

Action  of  trespass  by  Johnson  Lunt  and 
S.  Lunt  against  Royal  Brown  for  taking 
plaintiffs*  mare.  Plaintiffs  had  purchased 
tlie  mare  of  one  Winn,  and  had  agreed 
that  Winn  should  keep  her  "until  grazing 
time;"  and  while  she  was  in  Winn's  pos- 
session under  such  agreement  she  was 
taken  by  defendant,  a  deputy-sheriff,  un- 
der an  execution  against  Winn.  The 
court  instructed  the  jury  that  on  such 
facts  plaintiffs  could  not  recover,  and  the 
verdict  was  for  defendant.  Plaintiffs  al- 
leged exceptiims. 

Mr.  Bon  telle,  for  plaintiffs.  Mr.  Wells, 
for  defendant. 

Weston,  C.  J.  Regarding  the  right  of 
property  in   the  mare  in  controversy   to 


have  been  in  the  plaintiffs,  with  a  right 
of  pre-emption  only  in  Winn,  as  whose 
property  she  was  taken  by  tne  defendant, 
the  officer,  the  case  finds  that,  by  the 
agreement  between  the  plaintiffs  and 
Winn,  the  latter  was  to  keep  her  until 
grazing  time.  She  was  taken  by  the  offi 
cer  in  March,  before  the  time  of  grazing. 
And  this  is  the  only  proof  of  trespass  up- 
on which  the  plaintiffs  rely  to  maintain 
their  action.  Trespass  is  a  remedy  afford- 
ed by  law  for  an  injury  done  to  the  plain- 
tiffs' possession.  They  must  show  pos- 
session, actual  or  constructive,  or  an  im- 
mediate right  of  possession. 

In  Ward  v.  Macauley,  4  Term  R.  480.  the 
plaintiff  had  let  to  Lord  Montfort  a  ready 
furnished  house,  and  the  lease  contained 
a  schedule  of  the  furniture.  Pending  the 
lease,  the  defendants,  sheriffs  of  Middle- 
sex, seized  part  of  the  furniture  on  execu- 
tion against  Lord  Montfort.  Trespass 
was  held  not  to  lie  against  the  defend- 
ants, because  the  plaintiff  had  neither  pos- 
session nor  a  right  of  possession  at  the 
time.  The  same  doctrine  was  recognized 
in  Putnam  v.  Wyley,  8  Johns.  337,  and  in 
Clark  V.  Carlton.  1  N.  H.  110. 

As  the  plaintiffs  had  neither  possession 
nor  the  right  of  possession  at  the  time 
of  the  alleged  trespass,  we  are  satisfied, 
on  this  ground,  that  the  judge  below  was 
warranted  in  instructing  the  jury  that 
the  action  was  not  maintained.  We  ac- 
cordingly overrule    the  exceptions   takeu 


CONVERSION  OF  PERSONAL  PROPERTY. 


197 


by  the  counsel   for  the  plaintiffs.    It  has]  are  overruled,  the  plaintiffs  cannot  pre- 

become  unnecessary,  therefore,  to  consid-    vail. 

er  those  taken  for  the  defendant,  as,  if  they  |     .Judgment  for  defendant, 

(See,  also,  Billingsley  v.  White,  59  Pa.  St.  4<J9;  Wheeler  v.  Lawson,  103  N.  Y.  40,  8  N.  E.  Rep.  860; 
Muggridge  v.  Eveleth,  9  Mete.  (Mass.)  233;  Uufour  v.  Anderson,  95  Ind.  302;  Staples  v.  Smith,  48  Me. 
470.) 


CONVERSION  OF  PERSONAL  PROPERTY. 


I.  WHAT  CONSTITUTES  CONVERSION. 


(68  N.  Y.  522.) 

Laverty  v.  Snethen. 

{Court  of  Appeals  of  New  York.    Feb.  20, 1877.) 

1.  CoxvERSiox   —   Disposal  by  Agent  of  Prop- 

EKTT    OF   PUIXCIPAL. 

Where  an  agent  parts  with  the  property  of  his 
principal  in  a  way  or  for  a  purpose  not  author- 
ized, he  is  liable  tor  a  conversion;  but  if  he  parts 
with  it  in  accordance  with  his  authority,  al- 
though at  a  less  price,  or  if  he  misapplies  the 
avails,  or  takes  inadequate  forsuflQcient  security, 
he  is  not  liable  for  a  conversion. 

2.  Same. 

Plaintiff,  holding  a  promissory  note  payable 
to  his  order,  indorsed  the  same,  and  delivered  it 
to  defendant  to  negotiate  for  him,  with  instruc- 
tions not  to  let  the  note  go  out  of  his  hands  with- 
out receiving  the  money  for  it;  and  defendant 
gave  a  receipt  stating  that  the  note  was  received 
for  negotiation,  and  was  to  be  returned  the  next 
day,  or  the  avails  thereof.  Defendant  delivered 
the  note  to  a  third  person,  who  promised  to  ne- 
gotiate it,  and  return  the  proceeds.  The  latter, 
after  negotiating  the  note,  appropriated  the  pro- 
ceeds. Held,  that  the  act  of  defendant  was  an 
unlawful  interference  with  the  note,  and  amount- 
ed to  a  conversion  thereof. 

Appeal  from  court  of  common  pleas  of 
the  city  and  county  of  New  York,  gener- 
al term. 

Action  by  William  K.  Laverty  against 
Wortiiington  G.  Snethen  for  the  conver- 
sion of  a  promissory  note,  the  property 
of  i^lainiiff,  made  by  one  Holly,  paya- 
ble to  plaintiffs  order.  The  action  was 
brouglit  in  the  marine  court  of  the  city 
of  New  York.  Plaintiff  obtained  a  ver- 
dict, and  the  judgment  entered  thereon 
was  affirmed  on  appeal  by  the  general 
term  of  the  marine  court,  and,  on  a  fur- 
ther appeal,  by  the  general  term  of  the 
court  of  common  pleas.  From  the  judg- 
ment of  the  common  pleas,  defendant  ap- 
pealed. 

J  nines  C.  Carter,  for  appellant.  Snmupl 
Hand  and  Patterson  &  MaJor,ioT  respond- 
ent. 

Church,  C.  J.  The  defendant  received  a 
promissory  note  from  the  plaintiff,  made 
bj'  a  third  person,  and  indorsed  bj'  the 
plaintiff,  and  gave  a  receipt  therefor,  stat- 
ing that  it  was  received  for  negotiation, 
and  the  note  to  be  returned  the  next  day, 
or  the  avails  thereof.  The  plaintiff  testi- 
fied, in  substance,  that  he  told  The  defend- 
ant not  to  let  the  note  go  out  of  his  reach 
without  receiving  the  money.  The  de- 
fendant, after  negotiating  with  one  Foote 


about  buying  the  note,  delivered  the  note 
to  him  under  the  promise  that  he  would 
get  it  discounted,  and  return  the  money 
to  defendant,  and  he  took  away  the  note 
for  that  purpose.  Foote  did  procure  the 
note  to  be  discounted,  but  appropriated 
the  avails  to  his  own  use. 

The  court  charged  that,  if  the  jury  be- 
lieved the  evidence  of  the  plaintiff  in  re- 
spect to  instructing  the  defendant  not  to 
part  with  the  possession  of  the  note,  the 
act  of  defendant  in  delivering  the  note, 
and  allowing  Foote  to  take  it  away,  was 
a  conversion  in  law,  and  tlie  plaintiff  was 
entitled  to  recover.  The  exception  has 
been  criticised  as  applying  to  two  propo- 
sitions, one  of  \vhich  was  unobjectionable, 
and  therefore  not  available.  Although 
not  so  precise  as  is  desirable.  I  think  that 
the  exception  was  intended  to  apply  to 
the  proposition  above  stated,  and  was 
sufficient.  The  question  as  to  wiien  an 
agent  is  liable  in  trover  for  conversion  is 
sometimes  difficult.  The  more  usual  lia- 
bility of  an  agent  to  the  principal  is  an 
action  of  assumpsit,  or  what  was  former- 
ly termed  an  action  on  the  case  for  neg- 
lect or  misconduct,  but  there  are  cases 
when  trover  is  the  proper  remedy.  Con- 
version is  defined  to  bean  unauthorized  as- 
sumption and  exercise  of  the  right  of  own- 
ership over  goods  belonging  to  another, 
to  the  exclusion  of  the  owner's  rights. 
A  constructive  conversion  takes  place 
when  a  person  does  such  acts  in  reference 
to  the  goods  of  anotht^r  as  amount  in 
law  to  appropriation  of  the  property  to 
himself.  Every  unauthorized  taking  of 
personal  propertj',  and  all  intermeddling 
with  it,  beyond  the  extent  of  the  authori- 
ty' conferred,  in  case  a  limited  authority 
has  been  given,  with  intent  so  to  applj' 
and  dispose  of  it  as  to  alter  its  condition 
or  interfere  with  the  owner's  dominion, 
is  a  conversion.  Bouv.  Law  Diet.  tit. 
"Conversion."  S.wage,  C.  J.,  in  Spencer 
V.  Blackman,  9  Wend.  1(57,  defines  it  con- 
cisely as  follows:  "A  conversion  seems 
to  consist  in  any  tortious  act  by  which 
the  defendant  deprives  the  plaintiff  of  liis 
goods."  In  this  case  the  plaintiff  placed 
the  note  in  the  hands  of  the  defendant  for 
a  special  purpose  not  only,  but  with  re- 
stricte<l  authority  (as  we  must  assume 
from  the  verdict  of  the  jury )  not  to  part 
with  the  possession  of  the  note  without 
receiving  the  money.  The  delivery  to 
Foote   was   unauthorized   and   wrongful. 


198 


LAW  OF  TORTS. 


because  contrary  to  the  express  directions 
of  the  owner.  The  plaintiff  was  entitled 
to  the  absolute  dominion  over  this  prop- 
erty as  owner.  He  had  a  right  to  part 
with  so  much  of  that  dominion  as  he 
pleased.  He  did  part  with  so  much  of  it 
as  would  justify  the  defendant  in  deliver- 
ing: it  for  the  money  in  hand,  but  not  oth- 
erwise. The  act  of  permitting  the  note  to 
go  out  of  his  possession  and  beyond  his 
reach  was  an  act  which  he  had  no  legal 
right  to  do.  It  was  an  unlawful  inter- 
ference with  the  plaintiff's  property,  which 
resulted  in  loss,  and  that  interference  and 
disposition  constituted,  within  the  gener- 
al principles  referred  to,  a  conversion ; 
and  the  authorities,  I  think,  sustain  this 
conclusion  by  a  decided  weight  of  adjudi- 
cation. A  leading  case  is  Syeds  v.  Hay,  4 
Term  R.  260,  where  it  was  held  that  tro- 
ver would  lie  against  the  master  of  a  ves- 
sel who  had  landed  goods  of  the  plaintiff 
contrarj-  to  the  plaintiff's  orders,  though 
the  plaintiff  might  have  had  them  by 
sending  for  them,  and  paying  the  wharf- 
age. Butler,  J.,  said:  "If  one  man  who 
is  intrusted  with  the  goods  of  another 
put  them  into  the  hands  of  a  third  person, 
contrary  to  orders,  it  is  a  conversion." 
This  case  has  been  repeatedly  cited  by 
the  courts  of  this  state  as  good  law,  and 
has  never,  to  my  knowledge,  been  disap- 
proved, although  it  has  been  distinguished 
from  another  class  of  cases  upon  which 
the  defendant  relies,  and  which  will  be 
hereafter  noticed. 

In  Spencer  v.  Blackman,  9  Wend.  107,  a 
"watch  was  delivered  to  the  defendant  to 
have  its  value  appraised  by  a  watch- 
maker. He  put  it  into  the  possession  of 
a  watch-maker,  when  it  was  levied  upon 
Dy  virtue  of  an  execution,  not  against  the 
owner,  and  it  was  held  to  be  a  conversion. 
Savage,  C.  J.,  said:  "The  watch  was  in- 
trusted to  him  for  a  special  purpose,  to 
ascertain  its  value.  He  had  no  orders  or 
leave  to  deliver  it  to  Johnson,  the  watcn- 
maker,  nor  any  other  person.  "  So,  when 
one  hires  a  horse  to  go  an  agreed  distance, 
and  goes  beyond  that  distance,  he  is  lia- 
ble in  trover  for  a  conversion.  Wheelock 
V.  Wheelwright,  5  Mass.  103.  So  when  a 
factor  in  Buffalo  was  directed  to  sell 
wheat  at  a  specified  price,  on  a  particular 
day,  or  ship  it  to  New  York,  and  did  not 
sell  or  ship  it  that  day,  but  sold  it  the 
next  day  at  the  price  named,  held  that, 
in  legal  effect,  it  was  a  conversion.  Scott 
V.  Rogers,  31  N.  Y.  fi76.  See,  also.  Addi- 
son on  Torts,  310,  and  cases  there  cited. 

The  cases  most  strongly  relied  upon  by 
the  learned  counsel  for  the  appellant  are 
Dufresne  v,  Hutchinson,  3  Taunt.  117,  and 
Sarjeant  v.  Blunt,  16  Johns,  73,  holding 
that  a  broker  or  agent  is  not  liable  in 
trover  for  selling  property  at  a  price  below 
instructions.  The  distinction  in  the  two 
classes  of  cases,  I  apprehend, is  that  in  the 
latter  the  agent  or  broker  did  nothing 
with  the  property  but  what  be  was  au- 
thorized to  do.  He  had  a  right  to  sell  and 
deliver  the  propertj'.  He  disobeyed  in- 
structions as  to  price  only,  and  was  liable 
for  misconduct,  but  not  for  conversion  of 
the  property, — a  distinction  which,  in  a 
practical  sense,  may  seem  technical,  but  is 
founded    probably   upon   the    distinction 


between  an  unauthorized  interference  with 
the  property  itself  and  the  avails  or  terms 
of  sale.  At  all  events,  the  distinction  is 
fully  recognized  and  settled  by  authority. 
In  the  last  case,  Spencer,  J.,  distinguished 
It  from  Syeds  v.  Hay,  supra.  He  said: 
"In  the  case  of  Syeds  v.  Hay,  4  Terra  R. 
260,  the  captain  disobeyed  his  orders  in  de- 
livering the  goods.  He  had  no  right  to 
touch  them  for  the  purpose  of  delivering 
them  on  that  wharf." 

The  defendant  had  a  right  to  sell  the 
note,  and  if  he  had  sold  it  at  a  less  price 
than  that  stipulated,  he  would  not  have 
been  liable  in  this  action;  but  he  had  no 
right  to  deliver  the  note  to  Foote  to  take 
away,  any  more  than  he  had  to  pay  his 
own  debt  with  it.  Morally  there  might 
be  a  difference,  but  in  law  both  acts  would 
be  a  conversion,  each  consisting  in  exercis- 
ing an  unauthorized  dominion  over  the 
plaintiff's  property.  Palmer  v.  Jarinain, 
2  Mees  &  W.  282, is  plainly  distinguishable. 
There,  the  agent  was  authorized  to  get 
the  note  discounted,  which  he  did,  and  ap- 
propriated the  avails.  Parke,  B.,  said: 
"The  defendant  did  nothing  with  the  bill 
which  he  was  not  authorized  to  do."  So 
in  Cairnes  v.  Bleecker,  12  Johns.  300,  where 
an  agent  was  authorized  to  deliver  goods 
on  receiving  sufficient  security,  and  deliv- 
ered the  goods  on  inadequate  security,  it 
was  held  that  trover  would  not  lie,  for  the 
reason  that  the  question  of  the  sufficiency 
of  the  security  was  a  matter  of  judgment. 
In  McMorris  v.  Simpson,  21  Wead.  610, 
Bronson,  J.,  lays  down  the  general  rule 
that  the  action  of  trover  "may  be  main- 
tained when  the  agent  has  wrongfully  con- 
verted the  property  of  his  principal  to  his 
own  use,  and  the  fact  of  conversion  may 
be  made  out  by  showing  either  a  demand 
and  refusal,  or  that  the  agent  has  with- 
out necessity  sold  or  otherwise  disposed 
of  the  property,  contrary  to  his  instruc- 
tions. When  an  agent  wrongfully  refuses 
to  surrender  the  goods  of  his  principal,  or 
wholly  departs  from  his  authority  in  dis- 
posing of  them,  he  makes  the  property'  his 
own,  and  maybe  treated  as  a  tort-feasor.  " 
The  result  of  the  authorities  is  that,  if  the 
agent  parts  with  the  property  in  a  way 
or  for  a  purpose  not  authorized,  he  is  lia- 
ble for  a  conversion  ;  but  if  he  parts  with 
it  in  accordance  with  his  authority,  al- 
though at  less  price,  or  if  he  misapplies  the 
avails,  or  takes  inadequate  for  sufficient 
security,  he  is  not  liable  for  a  conversion 
of  the  property,  but  only  in  an  action  on 
the  case  for  misconduct.  It  follows  that 
there  was  no  error  in  the  charge.  The 
question  of  good  faith  is  not  involved.  A 
wrongful  intent  is  not  an  essential  element 
of  the  conversion.  It  is  sufficient  if  the 
owner  has  been  deprived  of  his  property 
by  the  act  of  another  assuming  an  unau- 
thorized dominion  and  control  over  it. 
Bo3'ce  V.  Brockway,  31  N.  Y.  490.  It  is 
also  insisted  that  the  parol  evidence  of  in- 
structions not  to  part  with  the  note  was 
incompetent  to  vary  the  terms  of  the  con- 
tract contained  in  the  receipt.  This  evi- 
dence was  not  objected  to  not  only,  but 
the  point  was  not  taken  in  any  manner. 
The  attention  of  the  court  was  not  called 
to  it.  and  the  court  made  no  decision  in 
respect  to  it.    Under  these  circumstances. 


CONVERSION  OF  PERSONAL  PROPERTY. 


199 


it  must  be  deemed  to  have  been  waived, 
Hnd  is  not  available  upon  appeal. 

But  if  an  exception  had  been  taken,  I 
am  inclined  to  the  opinion  that  the  testi- 
mony was  competent.  It  is  not  claimed 
that' it  varies  that  part  of  the  receipt 
which  contains  an  agreement  to  return 
the  note  or  money  the  next  day,  but  that 
it  varies  the  clause  stating  that  the  note 
was  received  for  negotiation.  This  ex- 
presses the  purpose  of  receiving  the  note, 
an<],  if  deemed  a  contract,  can  it  be  said 
that  a  parol  mandate  not  to  part  with 
possession  of  the  note  before  sale  and  re- 
ceipt of  money  is  inconsistent  with  it? 

There  is  no  rule  of  law  which  gives  an 
agent  the  right  thus  to  part  with  a  prom- 
issory- note  under  the  mere  authority  to 
negotiate.  The  instructions  were  consist- 
ent with  the  purpose  expressed,  although, 
if  they  had  not  been  given,  a  wider  field  of 
inquiry  might  have  been  opened.  A  prom- 
issory note  passes  from  hand  to  hand,  and 
a  bona  fide  holder  is  protected  in  his  title, 
and  it  might  well  be  claimed  that  an  au- 
thority to  sell  would  not  ordinarily  justi- 
fy a  deliverj-  to  a  third  person  without  a 
sale.  Without  definitely  passing  upon 
this  question,  we  think  that  the  question 
should  have  been  in  some  form  presented 
at  the  trial.  In  a  moral  sense,  the  defend- 
ant may  have  acted  in  good  faith,  and 
hence  the  judgment  may  operate  harshly 
ui)on  him,  but  the  fact  f'Uiud  by  the  jury 
renders  him  liable  in  this  action.  The 
judgment  must  be  affirmed.     All  concur. 

Judgment  affirnied. 


(45  X.  J.  Law,  515.) 

Frome  v.  Dennis. 

(Supreme  CoxlH  of  Xeiv  Jersey.  Xov.  Term,  1SS3.) 

1.  Conversion — What  Acts  Constitute. 

To  constitute  a  coaversion,  there  must  be  acts 
amounting  to  a  repudiation  of  the  owner's  right 
in  the  property,  or  an  exercise  of  o'.vnership  over 
it  inconsistent  with  such  right,  or  some  act  done 
which  destroys  or  changes  the  quality  of  the 
property. 

2.  Same — Intent— Knowledge  of  Ownership. 

A  person  who,  having  no  knowledge  of  the 
ownership  of  property,  borrows  it  of  the  person 
having  possession  thereof,  and,  after  using  it, 
returns  it  again  to  him,  supposing  him  to  be  the 
owner,  is  not  liable  for  a  conversion,  in  an  ac- 
tion by  the  true  owner. 

3.  Same — Demand  bt  Owner  and  Refusal. 
Under  such   circumstances,  the  failure   of  the 

borrower  to  deliver  the  property  to  the  owner, 
upon  demand  by  him  after  it  has  been  returned 
to  the  lender,  is  not  evidence  of  a  conversion. 

Certiorari  to  court  of  common  pleas, 
Warren  county. 

Acti(m  of  trover  by  Thomas  P.  Frome 
against  Andrew  J.  Dennis  for  the  alleged 
conversion  of  a  certain  yilow. 

Argued  before  Dixon  and  Pakker,  J  J. 

L.  Dewitt  Taj-7or.  for  plaintiff.  George 
A.  Angle,  for  defendant. 

Dixon,  J.  In  August,  1S7S),  the  plaintiff 
left  his  plow  on  the  farm  of  one  Cummins, 
with  the  latter's  consent,  until  he,  the 
plaintiff,  should  come  and  take  it  away. 
In  April,  isSO,  the  farm  passed  into  the 
possession  of  one  Hibler,  the  i)low  being 
Btill  there.  In  June,  iSSO.  the  defendant,  a 
neighboring  farmer,  borrowed    the   plow 


of  Hibler  to  plow  a  field,  supposing  the 
plow  to  be  Hibler's,  and,  having  used  it, 
in  three  or  four  days  returned  it  to  Hibler, 
still  supposing  it  to  be  his  property.  In 
the  summer  of  1881  the  plaintiff  informed 
the  defendant  that  it  was  his  plow  which 
he  had  used,  and  demanded  of  him  pay  for 
the  use,  and  the  return  of  the  plow  or  its 
value;  and,  the  defendant  not  complying, 
the  plaintiff  brought  an  action  of  trover 
for  the  plow.  The  justice  before  whom 
the  suit  was  instituted,  and  the  common 
pleas  on  appeal,  each  gave  judgment  for 
the  plaintiff  for  the  value  of  the  plow. 
The  judgment  of  the  pleas  is  now  before 
us  on  certiorari,  and  the  defendant  below 
contends  that  the  foregoing  facts  proved 
on  the  trial  did  not  justify  the  judgment. 
In  this  contention  we  agree  with  the  de- 
fendant. In  order  to  maintain  an  action 
of  trover,  it  is  necessary  to  prove  an  act 
of  conversion  by  the  defendant  of  the 
plaintiff's  property.  What  will  constitute 
a  conversion  is,  I  think,  well  summed  up 
by  Mr.  .Justice  Depue  in  Woodside  v. 
Adams,  30  N.  J.  Law,  417,  in  these  words: 
"To  constitute  a  conversion  of  goods, 
there  must  be  some  repudiation  by  the  de- 
fendant of  the  owner's  right,  or  some  ex- 
ercise of  dominion  over  them  by  him  in- 
consistent with  such  right,  or  some  act 
done  which  has  the  effect  of  destroying  or 
changing  the  quality  of  the  chattel.  "  This 
subject  has  quite  recently  received  consid- 
erable discussion  in  the  exchequer  cham- 
ber 'diid  house  of  lords  of  England,  in 
Fowler  V.  Ilollins,  L.  R.  7  Q.  B.  GIG.  and 
L.  R,  7  H.  L.  757.  The  facts  upon  which 
the  court  finally  settled  as  the  basis  of  de- 
cision made  the  case  a  plain  one  of  conver- 
sion. They  were  that  one  Bayley  had 
fraudulently  come  into  possession  of  13 
bales  of  cotton  belonging  to  the  plaintiff, 
and  had  sold  and  delivered  them  to  the  de- 
fendant, who  bought  in  good  faith,  and 
who  then  sold  and  delivered  them  in  good 
faith  to  Micholls  &  Co.  Here  was  clearly 
an  exercise  of  dominion  over  the  goods 
by  the  defendant  inconsistent  with  the 
plaintiff's  right.  But  in  the  course  of  the 
cause  some  of  the  judges  thought  that, 
according  to  the  case  reserved,  the  de- 
fendant, in  the  transfer  from  Bayley  to 
Micholls  &  Co.,  dealt  only  as  broker  and 
agent  of  the  latter;  and  in  examining  the 
goods,  receiving  them  from  Baj'ley,  and 
forwarding  them  to  Micholls  &  Co.,  acted 
without  any  actual  intention  with  regard 
to,  or  any  consideration  of,  the  property 
in  the  goods  being  in  one  person  more  than 
another;  and  so  the  question  was  raised 
whether  such  a  possession  of  the  goods 
and  such  an  asportation  amounted,  in 
law,  to  a  conversion.  Many  of  tiie  En- 
glish cases  were  commented  on  at  length 
by  Mr.  Justice  Biuctt.  in  both  tribunals, 
and  he  insisted,  with  great  force  and  clear- 
ness, upon  a  negative  response.  Bvles.  J., 
and  Kelly.  C.  B.,  expressly  concurred  in 
this  opinion,  and  the  other  judges  in  the 
exchequer  chamber  seem  not  to  have  dis- 
agreed with  it  in  point  of  law,  but  they 
rested  their  conclusion  upon  a  different 
view  of  the  facts.  In  the  house  of  lords 
^fr.  Justice  Blackbuhn  expressed  his  oi)in- 
ion  that  the  defendant  was  liable,  because 
he  both  entered  into  a  contract  with  Bay- 


200 


LAW  OF  TORTS. 


ley,  and  also  assisted  in  chanp,in^  the  cus- 
tody of  the  goods,  and  so  knowingly  and 
intentionally  assisted  in  transierrinK  the 
dominion  in  the  property  in  tlie  goods  to 
Miclioils  &  Co.,  that  they  might  dispose 
of  them  as  their  own.  This  lie  deemed  a 
conversion  by  the  defendant,  no  jnatter 
whether  he  acted  as  broker  or  not.  In  the 
course  of  his  remarks  lie  lays  down  the 
principle  that  one  who  deals  with  goods 
at  the  request  of  the  person  who  has  the 
actual  custody  of  them,  in  the  bona  fide 
belief  that  the  custodier  is  the  true  owner, 
or  has  the  authority  of  the  true  owner, 
should  be  excused  from  what  he  does,  if 
the  act  Is  of  such  a  nature  as  would  be  ex- 
cused if  done  by  the  authority'  of  the  per- 
son in  possession,  if  he  was  a  finder  of  the 
^oods  or  intrusted  with  their  custody. 
Heconcedes,  moreover,  that  this  is  not  the 
extreme  limit  of  the  excuse,  and  doubts 
whether  it  would  be  a  conversion  for  a  mill- 
er to  grind  grain  into  flour,  and  return  the 
flour  to  the  person  who  brought  the  grain, 
before  he  heard  of  the  true  owner.  Under 
the  definition  of  Mr.  Justice  Depue,  above 
quoted,  this  act  of  the  miller  would  be  a 
conversion,  because  it  changed  thequality 
of  the  owner's  goods.  Mr.  Baron  Ci.eas- 
BY,  while  concurring  with  those  who 
looked  upon  the  defendant  as  a  principal, 
and  therefore  guilt5',sa3^s  with  reference  to 
this  view  that  he  was  a  broker  merely. 
"How  far  the  intermeddling"  with  the 
goods  themselves  by  delivering  them 
would"  involve  a  broker  in  responsibility 
to  theowner"  admits  of  question,  and  was 
the  subject  of  much  argument  at  the  bar, 
and  might  depend  rpon  the  extent  to  which 
the  broker  in  such  case  could  be  regarded  as 
having  an  independent  possession  of  the 
goods  and  delivering  them  for  the  purpose 
of  passing  the  property."  Mr.  Justice 
Grove  advised  the  house  in  favor  of  the 
plaintiff,  on  the  ground  that  the  defend- 
ant intermeddled  with  goods  which  were 
not  his  own,  and  exercised  a  dominion 
over  them  inconsistent  with  the  right  of 
the  true  owner.  Mr.  Baron  Amphlett 
concurred  with  Brett.  Lord  Chelms- 
ford, Chancellor  Cairns,  and  Lords  Hath- 
erley  and  O'Hagan  advised  forthe  plain- 
tiff, in  substance,  because  the  defendant 
had  exercised  dominion  over  the  plaintiff's 
property  by  disposing  of  it  to  Micholls  & 
Co. 

It  is  apparent,  I  think,  from  a  perusal 
of  these  judgments,  that  every  judge  based 
his  opinion  of  the  defendant's  guilt  on  the 
question  whether  he  had  done  any  act 
which  amounted  to  a  repudiation  of  the 
plaintff's  title,  or  to  an  exercise  of  domin- 
ion, i.  e.,  ownership,  over  the  goods.  Less 
than  this  would  constitute  a  trespass,  but 
not  a  conversion,  so  long  as  the  character 
of  the  chattels  remained  unchanged. 

In  a  very  late  case  in  Massachusetts, 
(Spooner  v.  Manchester,  133  Mass.  270,)  a 
similar  view  is  expressed.  Field,  J.,  there 
says:  " Con vei-sion  is  based  upon  the  idea 
of  an  assumption  of  property  or  a  right  of 
dominion  overthe  thing  converted,  »  *  « 
and  it  is  therefore  not  every  wrongful  in- 
termeddling with,  or  wrongful  asporta- 
tion or  wrongful  detention  of,  iJersonal 
property  that  amounts  to  a  conversion. 
Acts  v/hich  themselves  imply  an  assertion 


of  title  or  of  a  right  of  dominion  over  per- 
sonal property,  suvh  as  a  sale,  letting,  or 
destruction  of  it,  amount  to  a  conversion, 
even  although  the  defendant  ma3'  have 
honestly  mistaken  his  rights;  but  acts 
which  do  not,  in  themselves,  imply  an  as- 
sertion of  title  or  of  a  right  of  such  domin- 
ion over  such  property  will  not  sustain  an 
action  of  trover,  unless  done  with  the  in- 
tention to  deprive  the  owner  of  it  perma- 
nently or  temporarily,  or  unless  there  has 
been  a  demand  for  the  property,  and  a 
neglect  or  refusal  to  deliver  it,  which  are 
evidence  of  a  conversion,  because  they  are 
evidence  that  the  defendant,  in  withhold- 
ing it,  claims  the  right  to  withhold  it, 
which  is  a  claim  of  a  right  of  dominion 
over  it.  *  *  *  Whether  an  act  involv- 
ing the  temporary  use,  control,  or  deten- 
tion of  property  im[)lies  an  assertion  of  a 
right  of  dominion  over  it  may  well  depend 
upon  the  circumstances  of  the  case  and 
the  intention  of  the  person  dealing  with 
the  proi)erty. "  To  the  same  effect  is  Lav- 
erty  v.  Suet  hen,  68  N.  Y.  522. 

In  the  light  of  tliese  authorities,  the  con- 
duct of  the  defendant  in  the  case  at  bap 
did  not  amount  to  a  conversion  of  the 
plow.  He  received  it  for  temporary  use 
only,  and  without  any  claim  of  right  or 
dominion  over  it,  but  having  a  mere  license 
from  the  possessor,  revocable  at  once  by 
either  the  possessor  or  the  true  owner. 
He  surrendered  it  to  the  possessor,  from 
whom  he  had  received  it,  without  any  in- 
tention of  enlarging  or  changing  his 
title,  Avithout  any  reference  to  an.vbody's 
title,  and  doubtless  would  have  as  readily 
surrendered  to  the  plaintiff  upon  his  own- 
ership being  shown.  Neitlier  in  the  use 
nor  in  the  surrender  by  the  defendant  does 
there  appear  any  repudiation  of  the  own- 
er's right,  or  any  exercise  of  dominion  in- 
consistent with  such  right.  His  acts  may 
haveconstituted  a  trespass,  but  not  a  con- 
version. This  being  so,  his  subsequent 
failure  to  deliver  the  plow  to  the  plaintiff 
on  demand  was  not  evidence  of  a  conver- 
sion, for  the  reason  that  delivery  was  then 
impossible  to  him.  He  did  not  refuse  to 
deliver,  but  could  not.  Ross  v.  Johnson, 
5  Burrows,  2825;  Bank  v.  Wheeler,  48  N. 
Y.  492;     Magnin  v.  Dinsmore,  70  N.  Y.  410. 

The  plaintiff  contends  that  the  evidence 
on  the  part  of  the  defendant  as  to  his 
conversation  with  Hibler  at  the  time  of 
borrowing  the  plow  was  illegal.  It  was 
not,  however.  It  being  proper  to  show 
that  the  defend  ant  came  into  possession  of 
the  plow,  the  declarations  of  himself  and 
of  the  person  from  whom  he  received  pos- 
session, contemporaneous  with  the  trans- 
fer and  indicative  of  its  character,  were  ad- 
missible as  part  of  the  res  g-estae.  Luse  v. 
Jones,  39  N.  J.  Law,  707;  Hunter  v.  State, 
40  N.  J.  Law,  495. 

The  judgment  below  should  be  reversed. 


(U  R.  I.  39.) 
Freeman  et  ah  v.  Boland. 

{Supreme  Court  of  Rhode  Island.    Dec.  5, 1883.) 

Conversion — TVhat  Acts  Constitute — Infancy. 
A  person,  though  an  infant,  who  hires  a  horse 
and  wagon  to  drive  to  a  particular  place,  and 
drives  beyond  such  place,  is  liable  tor  a  couvex'- 
sion. 


CONVERSION  OF  PERSONAL  PROPERTY. 


201 


Exceptions  from  court  of  common  ploap. 

Action  of  ti-over  by  Freeman  &  Francis 
ajrainst  Franl<  P.  Boiand  for  the  alleg:ed 
conversion  of  a  liorse  and  buggy.  Verdict 
and  judgment  for  plaintiffs.  Defendant 
alleged  exceptions. 

John  D.  Thurston,  for  plaintiffs.  George 
J.  TTe.sf,  for  defendant. 

DuRFRKE,  C.  J.  The  question  here  is 
AA-hether  an  infant  or  minor  wiio  hires  a 
horse  and  buggy  to  drive  to  a  i^articular 
place,  and  who.  having  got  them  under 
the  hiring,  drives  bej'ond  the  place  or  in 
another  direction,  is  liable  in  trover  for 
the  conversion.  We  think  he  is.  There 
are  cases  in  v^iiich  infancy  has  been  held  to 
be  a  good  defense  to  an  action  ex  dflicto, 
for  tort  committed  under  contract  or  in 
making  it.  IJut  that  is  not  this  case.  The 
act  here  complained  of  was  committed, 
not   under  the  contract,  but  by  abandou- 

(See.  also,  Forbes  v.  Railroad  Co.,  133  Mass.  1.54;  Spooner  v.  Manchester.  Id.  270;  Pease  v.  Smith, 
61  N.  Y.  477;  Bank  v.  Wheeler.  48  N.  Y.  492;  Alexander  v.  Swackhamer,  10.5  Ind.  si.  4  N.  E.  Rep.  4X3, 
and  .5  N.  E.  Rep.  90S;  Chapman  v.  Cole,  12  Gra^',  141;  HoUins  v.  Fowler,  L.  R.  7  H.  L.  757;  First  IS'at. 
Bank  v.  Northern  R.  Co.,  58  N.  H.  203.) 


ing  it,  the  bailment  being thns  determined. 
The  contract  cannot  avail  if  the  infant 
goes  beyond  the  scope  of  it.  The  distinc- 
tion may  be  subtle,  but  it  is  well  settled, 
and  has  been  often  applied  in  support  of 
actions  precisely  like  tliis.  It  istruetl)e 
contract  must  be  generally  put  m  proof 
to  support  the  action,  but  this  is  because 
the  tort,  inasmuch  as  it  is  committed  by 
departing  from  the  terras  of  tiie  contract, 
cannot  be  shown  Avithout  showing  the 
contract,  and  not  because  the  contract  is 
otherwise  inA'olved.  Homer  v.  Tliwing, 
3  Pick.  492;  Towne  v.  Wiley,  23  Vt.  3.m; 
Fish  V.  Ferris,  .5  Duer,  49;  Vasse  v.  Smith, 
(5  Cranch,  226;  Green  v.  Sperry,  16  Yt.  390; 
Campbell  v.  Stakes,  2  Wend.  1,37:  Add. 
Torts.  §  1314.  We  understand  that  the 
defendant  does  not  ask  us  to  decide  the 
questions  raist^d  by  the  other  exceptions, 
the  exceptions  l)eing  waived. 
Exceptions  overruled. 


II.  IS  AN  INJURY  TO  THE  RIGHT  OF  POSSESSION. 


(1  Strange,  505.) 

Armory  v.  Dei..\mirie. 

{Court  of  Klmj's  Bench.     Hilary  Term,  1722.) 

1.  CoxvERsiox  —  Right  to  Possessiox  —  Fixdek 

MAT  Maintain  Tkover. 
The  tinder  of  an  article   has   such   a   property 
therein  as  will  enable  him  to  keep  it   as    against 
all  but  the  rightful  owner,  and   he  may  maintain 
trover  for  its  conversion. 

2.  Master  and    Servant  —  LiABiLiTr    to    Third 

Persons. 
The  master  is  liable   for   a   conversion    by  his 
apprentice  of  property  taken  by  the  latter  in  the 
line  of  his  employment. 

3.  Same — Measure  of  Damages. 

A  chimney  sweep,  finding  a  jewel,  delivered 
it  to  a  goldsmith  to  ascertain  what  it  was,  and 
the  latter  took  out  the  stones  and  returned  the 
socket.  Held,  in  an  action  of  trover,  that  un- 
less defendant  produced  the  stones,  the  strongest 
presumption  was  against  him,  and  the  measure 
of  damages  should  be  the  value  of  the  finest  stones 
which  would  fit  into  the  socket. 

Before  Pratt,  C.  J.,  at  nisi privs. 

The  plaintiff,  being  a  chimney  sweeper's 
boy,  found  a  jewel,  and  carried  it  to  the 
defendant's  shop,  ( who Avas  agoldsmith.) 
to  know  what  it  was,  and  delivered  it  in- 
to the  hands  of  the  apprentice,  who.  un- 
der pretense  of  weighing  it,  took  out  the 
stones;  and,  calling  to  the  master  to  let 
him  know  if  it  came  to  three  half-pence, 
the  master  offered  the  boy  the  money,  who 
refused  to  take  it,  and  insisted  to  have 
the  thing  again  ;  AA'hereupon  the  appren- 
tice dpliAered  him  back  the  socket  Avithout 
the  stones.  And  now  in  trover  against 
the  master  these  points  Avere  ruled; 

1.  That  the  tinder  of  a  jewel,  though  he 
does  not  by  such  finding  acquire  an  abso- 
lute proi)erty  or  ownershi]),  yet  he  has 
such  a  propertA-  as  will  enabh-  him  to  keep 
it  against  ail  but  the  riglitful  owner,  and 
conse(]tiently  may  maintain  trover. 

2.  That    the   action  well  lay  against  the 


master,  Avho  gives  a  credit  to  his  appren- 
tice, and  is  answerable  for  his  neglect. 

3.  As  to  the  value  of  the  jewel,  several 
of  the  trade  AA-ere  examined  to  prove 
AA'hat  a  jewel  of  the  finest  water  that 
would  fit  the  socket  would  be  worth  ;  and 
the  chief  justice  directed  the  jury  that,  un- 
less the  defendant  did  produce  the  jewel, 
and  show  it  not  to  be  of  the  finest  water, 
they  should  presume  thestrongest against 
him,  and  make  the  Aalue  of  the  best 
jewels  the  measure  of  their  damages, 
which  they  accordinglj-  did. 


(7  Term   R.  9.) 

Gordon  v.  Harper,  (in  part.) 

(Coin-t  of  King's  Bench.    'Sov.  11,  1796.) 

1.  CoNA-ERSiox— Right  to  Possession — Who  may 

Maintain  Trover. 
Trover  will  not  lie  for  the  conversion   of  per- 
sonal property  unless  at   the  time  of  the  conver- 
sion the  possession  or  right  to  the  immediate  pos- 
session was  in  plaintiff. 

2.  Same — Leased  Property. 

The  owner  of  personal  property  leased  to  an- 
other cannot  maintain  trover  for  a  conversion 
pending  the  demise. 

Case     reserved   on   verdict    subject  to 
opinion  of  court. 

Action  of  trover  by  Gordon  against 
Harper  for  the  conversion  of  household 
goods  taken  by  Harper  as  slieriff.  and 
sold  under  a  Avrit  against  one  Barret  in 
favor  of  one  Broomhead.  Barret  had 
sold  thegoodsto  plaintiff,  who  had  leased 
them  to  one  Briscoe,  in  connection  with 
the  house  where  they  were  found,  and 
thej'  AA-ere  taken  b3'  defendant  from  Bris- 
coe's possession  before  the  expiration  of 
his  lease.  The  lease  had  not  expired  at 
the  time  of  the  trial.  A  verdict  Avas  found 
for  plaintiff  subject  to  the  opin:-on  of  tlie 
court  on  the  above  facts. 


202 


LAW  OF  TOiiTS. 


Mr.  Burrough,  for  plaintiff.  Mr.  Best, 
contra. 

ASHURST,  J.  I  have  always  understood 
the  rule  of  law  to  be  that,  in  order  to 
maintain  trover,  the  plaintiff  must  have 
a  right  of  property  in  the  thing,  and  a 
right  of  possession,  and  that,  unless  both 
these  rights  concur,  the  action  will  not  lie. 
Nowhere  it  is  admitted  that  the  tenant 
had  the  right  of  possession  during  the 
continuance  of  his  terra,  and  consequent- 
ly one  of  the  requisites  is  wanting  to  the 
landlord's  right  of  action.  It  is  true 
that  in  the  present  case  it  is  not  very 
probable  that  the  furniture  can  be  of  any 
use  to  any  other  than  the  actual  tenant 
of  the  premises;  but,  supposing  the  things 
leased  had  been  manufacturing  engines, 
there  is  no  reason  why  a  creditor  seizing 
them  under  an  execution  should  not  avail 
himself  of  the  beneficial  use  of  them  dur- 
ing the  term. 

Grosk,  J.  The  only  question  is  whether 
the  trover  will  lie  where  the  plaintiff  had 
neither  the  actual  possession  of  the  goods 
taken  at  the  time  nor  the  right  of  pos- 
session. The  common  form  of  pleading  in 
such  an  action  is  decisive  against  him,  for 
he  declares  that,  being  possessed,  etc.,  he 
lost  the  goods.  He  is  therefore  bound  to 
show  either  an  actual  or  virtual  posses- 
sion. If  he  had  a  right  to  the  possession, 
it  is  implied  by  law.  Where  goods  are  de- 
livered to  a  carrier,  the  owner  has  still  a 
right  of  possession,  as  against  a  tort- 
feasor, and  the  carrier  is  no  more  than 
his  servant.  But  here  it  is  clear  that  the 
plaintiff  had  no  right  of  possession,  and 
he  would   be  a   trespasser  if   he  took  the 


goods  from  the  tenant.  Then,  by  what 
authority  can  he  recover  them  from  any^ 
other  person  during  the  term?  It  is  laid 
down  in  some  of  the  books  (1  Bac.  Abr. 
45;  .5  Bac.  Abr.  257;  2  Com.  Dig.  tit. 
"  Detinue,  D")  that  trover  lies  where  detinue 
will  lie,  the  former  having  in  modern  times 
been  substituted  for  the  old  action  of  det- 
inue. I  will  not  say  that  it  is  universally 
true  that  the  one  action  may  be  substi- 
tuted for  the  other,  because  the  authori- 
ties referred  to  in  support  of  that  proposi- 
tion do  not  apply  to  that  extent;  but  cer- 
tainly it  may  be  said  to  be  a  good  criteri- 
on. But  it  is  clear  in  this  case  that  deti- 
nue would  not  lie,  because  the  plaintiff 
held  no  right  to  the  possession  of  the  spe- 
cific goods  at  the  time.  And,  if  not,  it  is 
a  strong  argument  to  show  that  trover, 
which  was  substituted  in  lieu  of  it,  can- 
not be  maintained  by  the  present  plain- 
tiff. Much  stress  has  been  laid  on  what 
was  said  in  Ward  v.  Macauley,  4  Term  R. 
489;  but  the  only  question  there  was 
whether  trespass  would  lie  under  these 
circumstances,  and  it  was  not  necessary 
to  determine  how  far  trover  might  be 
maintained.  It  appears  now  very  clearly, 
upon  examining  that  point,  that  trover 
will  not  lie  in  any  case,  unless  the  proper- 
ty converted  was  in  the  actual  or  implied 
rightful  possession  of  the  plaintiff.  In 
this  case  the  plaintiff  had  neither  the  one 
nor  the  other  pending  the  demise,  and, 
when  that  is  determined,  perhaps  he  may 
have  his  goods  restored  to  him  again  in 
the  same  state  in  which  they  now  are, 
when  it  will  appear  that  he  has  not  sus- 
tained that  damage  which  he  now  seeks 
to  recover  in  this  action. 
Postea  to  defendant. 


(See,  also,  Stowell  v.  Otis,  71  N.  Y.  36;  Winship  v.  Neale,  10  Gray,  3S2;  Vining  v.  Baker,  53  Me. 
544;  Castor  v.  McShaffery,  48  Pa.  St.  437;  Bartlett  v.  Hoyt,  29  N.  H.  317;  Bowen  v.  Fanner,  40  Barb. 
383;  Jeffries  v.  Railroad  Co.,  5  El.  &  Bl.  802;  Shaw  v.  Kaler,  106  Mass.  443;  Manders  v.  Williams,  4 
Exch.  339.) 


III.  CONVERSION  BY  JOINT  OWNER. 


(21  Pick.  559.) 

Weld  v.  Oliver,  (in  part.) 

(Supreme  Judicial  Court  of  Massachusetts. 
March  25,  1839.) 

Conversion  by  Tenant  in  Common. 

Where  one  tenant  in  common  of  personal  prop- 
erty sells  and  delivers  the  entire  property  as  ex- 
clusively his  own,  it  amounts  to  a  conversion,  for 
which  his  co-tenant  can  maintain  trover. 

Case  reserved  upon  agreed  facts. 

Action  of  trover  by  AVilliam  F.  Weld 
against  James  Oliver  for  an  alleged  con- 
version of  7,870  bushels  of  salt.  The  salt 
was  ovi'ned  in  equal  undivided  shares  by 
plaintiff  and  one  Greene,  and  was  sold  to 
defendant  by  Greene  in  payment  of  shares 
of  corporate  stock  bought  by  Greene. 
Plaintiff,  discovering  the  sale,  forbade  de- 
fendant disposing  of  the  salt,  but  defend- 
ant thereafter  sold  it  as  his  own  in  small 
lots.  Plaintiff  contended  that  by  the  sale 
by  Greene  plaintiff  and  defendant  became 
tenants  in  common  of  such  salt,  and  that 
the  sale  by  defendant  of  the  salt  as  exclu- 
eivelj'  his  own  was  a  conversion,  and   the 


case  was  stated  for   the  opinion   of  the 
court. 

(J.  G.  Loring,  F.  C.  Loriug,  and  Mr.  De- 
hon  for  plaintiff.  Choate  &  Cruwnia- 
shieid,  for  defendant. 

Dewey,  J.  The  principal  question  in  the 
present  case  is  whetheran  action  of  trover 
will  lie  by  one  tenant  in  common  of  per- 
sonal chattels  against  his  co-tenant  upon 
no  other  evidence  of  conversion  b3'  him 
than  a  sale  and  delivery  of  the  entire  prop- 
erty as  exclusively  his  own.  I  am  not 
aware  that  this  question  has  been  distinct- 
ly settled  by  any  adjudication  of  this 
court.  The  case  of  Melville  v.  Brown,  15 
Mass.  82,  which  has  sometimes  been  sup- 
posed to  sanction  the  doctrine  that  such  a 
sale  was  a  conversion  for  which  trover 
would  lie,  was  considered  by  the  court  as 
maintainable  upon  principles  peculiar  to 
itself,  and  of  a  more  limited  character;  it 
being  a  case  of  an  abuse  of  an  authority 
in  law,  under  an  attachment  on  mesne 
process,  and  subsequent  sale  on  execution 
by  a  sheriff.  The  elementary  books  gen- 
erally state  the  rule  to  be  that  one  tenant- 


CONVERSION  OF  I'EKSONAL  PKOPERTY. 


20$ 


incommon  cannot  maintain  trover  againHt 
hJH  co-tenant  unioss  thcM'e  haw  been  a  de- 
struction of  the  property  ;  and  in  some  of 
them  it  is  expressly  affirmed  tiiatasale  by 
one  co-tenant  of  the  entire  property  will 
not  amount  to  a  conversion.  The  cases 
cited  to  sustain  this  latter  position  are 
very  limited,  and  not  of  so  decisive  a  char- 
acter as  to  put  this  poinc  at  rest.  On  the 
contrary,  the  question  may  be  considered 
in  this  commonwealth  as  an  open  one,  and 
to  be  decided  upon  what  may  seem  to  be 
sound  principle. 

The  authority  of  the  few  English  cases 
usually  cited  as  favoring  the  (Joctrine  that 
a  sale  in  such  cases  is  not  a  conversion  is 
certainly  much  weakened  by  the  case  of 
Barton  v.  Williams,  5  Barn.  &  Aid.  395, 
where  it  seems  to  be  distinctly  stated  by 
two  of  the  learned  judges  before  whom  the 
cause  was  heard  that  a  sale  of  the  whole 
property  by  one  of  two  tenants  in  com- 
mon is  a  conversion.  The  case,  however, 
presented  other  questions, and, in  the  final 
disposition  of  it,  this  point  does  not  seem 
to  liave  been  settled. 

Upon  recurring  to  the  origin  of  the  doc- 
trine so  frequently  stated,  that  one  tenant 
in  common  cannot  maintain  trover 
against  his  co-tenant  unless  there  has 
been  a  destruction  by  him  of  the  property 
thus  holden  in  common,  I  think  it  will  be 
found  to  have  been  originally  asserted 
witn  reference  to  the  right  of  one  tenant 
in  common  to  sue  his  co-tenant,  in  an  ac- 
tion of  trover,  for  the  exclusive  use  and 
possession  of  the  common  property,  and 
the  denying  to  the  other  any  participation 
in  the  same;  and,  when  thus  applied,  it  is 
entirely  correct,  upon  the  familiar  princi- 
ple that  the  possession  of  one  co-tenant  is 
the  possession  of  both,  and  he  who  lias 
the  present  possession  cannot  be  ousted. 
It  is  very  clear  that  one  tenant  incommon 
cannot  maintain  an  action  of  trover 
against  his  co-tenant  for  the  mere  act  of 
withholding  from  him  the  use  of  a  chat- 
tel, the  rights  of  both  being  such  that  he 
who  has  the  possession  cannot  be  guilty  of 
a  conversion  b.v  retaining  it.  Nor  can  one 
tenant  in  common  object  to  the  mere  sale 
by  the  other  of  the  interest  of  the  vendor  in 
the  common  property,  and  a  delivery  over 
of  the  chattel  to  the  purchaser.  Such  a 
right  results  from  the  nature  of  the  rela- 
tion between  the  parties,  and  to  this  in- 
convenience each  must  be  subject;  the  mere 
change  of  possession,  under  such  circum- 
stances, being  no  conversion. 


But  the  question  arises  whether  this  be 
not  the  limit  beyond  which,  if  one  co-ten- 
ant passes,  he  subjects  himself  to  an  ac- 
tion by  the  other  co-tenant  for  the  conver- 
sion of  his  sliare  of  the  property.  The 
ordinary  evidence  of  conversion  is  the  un- 
lawful taking  or  detention  of  goods  from 
the  possession  of  the  true  owner;  but  it 
is  equally  true  that  he  who  undertakes  to 
dispose  of  my  goods  as  his  own  property 
thereby  subjects  himself  to  an  action  of 
trover.  May  not  the  assumption  of  prop- 
erty in  and  a  sale  of  my  undivided  moiety 
by  my  co-tenant  be  equally  a  conversion 
by  him  of  the  moiety  belonging  to  me,  as 
the  sale  by  a  stranger  of  an  article  in 
which  I  had  the  entire  interest  he  the  con- 
version of  the  whole  property  by  the 
stranger? 

The  objection  to  holding  a  sale  by  one 
tenant  in  common  of  the  interest  of  his 
co-tenant  to  be  a  conversion,  as  stated  in 
Bac.  Abi-.  "Trover,"  is  that  such  a  sale 
only  passes  the  interest  of  the  vendor,  and 
the  interest  of  the  other  co-tenant  still 
remains  in  common  with  the  purchaser, 
and  therefore  there  can  be  no  conversion 
b.y  the  act  of  sale.  But  the  fact  that  the 
original  owner  is  not  divested  t)f  his  legal 
property  by  force  of  the  sale  is  equally 
true  in  the  ordinary  cases  of  the  conver- 
sion of  the  whole  propert.y  by  a  stranger; 
but  this  is  not  deemed  a  bar  to  an  action 
of  trover,  if  the  owner  elects  that  mode  of 
redress,  rather  than  to  reclaim  the  specific 
property.  To  constitute  a  conversion  of 
the  whole  property  by  a  stranger  requires 
only  an  assumption  of  authoritj-  over, 
and  an  actual  sale  of,  the  property,  and 
it  is  not  necessary  that  the  legal  interest 
should  pass  by  the  sale. 

We  do  not  perceive  any  sufficient  reason 
for  taking  a  distinction  between  the  cases 
of  an  unlawful  sale  of  a  moiety  or  the  en- 
tire estate;  and  it  seems  to  us,  in  either 
case,  the  assuming  an  authority  to  sell, 
and  the  making  the  actual  sale,  of  the  in- 
terest of  another,  under  a  claim  of  title  in 
the  vendor,  may  properly  be  taken  to  be  a 
conversion  for  which  an  action  of  trover 
will  lie.  Wearesustainedinthisopinion  by 
anearly  decision  of  the  supreme  court  of  the 
state  of  New  York  in  the  case  of  Wilson 
V.  Reed,  3  Johns.  175;  and  the  same  princi- 
ple has  also  been  subsequently  recognized 
in  the  cases  of  Hyde  v.  Stone,  9  Cow.  230, 

and  Gilbert  v.  Dickerson,  7  Wend.  449. 

*        *        *        *        »        ••• 

Judgment  for  plaintiff. 


(See,  also,  Dyckman  v.  Valiente,  42  N.  Y.  549;  Wheeler  v.  Wheeler,  33  Me.  347;  White  v.  Phelps, 
13  N.  H.  383;  Browning  v.  Cover,  108  Pa.  St.  595;  Lewis  v.  Clark,  59  VU  363,  8  AtL  Rep.  158;  Davis  V. 
Lottich,  46  N.  Y.  395;  Lobdell  v.  Stowell,  51  N.  Y.  70.) 


IV.  DEMAND  AND  REFUSAL  AS  EVIDENCE  OF  CONVERSION. 


(9  Barb.  176.) 
EsMAY  V.  Fanning. 

(Supreme  Court  of  New  York.    July  1, 1850.) 

1.  CoNVERSiox — Bailment — Return  of  Propertt 

TO  Thikd  Person. 

A  bailee  of  a  chattel  who  fails  to  restore  it  to 

the  rightful  owner,  but  delivers  it  to  another  not 

entitled  to  receive  it,  though   under   an  honest 


mistake  of  fact,  is  liable  in  trover  for   its   con- 
version. 

3.  Same. 

Plaintiff  loaned  his  carriage  to  defendant,  who 
took  the  same  from  the  livery  stable  of  another, 
where  it  was  stored  for  plaintiff.  Held,  that  a 
return  to  such  livery  stable,  after  the  keeper  bad 
ceased  to  be  plaintiff's  agent,  amounted  to  a  con- 
version. 


20-i 


LAW  OF  TORTS. 


S.  Same — Necessitt  of  Demaxd. 

Where  personal  property  comes  lawfully  into 
the  possession  of  a  person  other  than  the  owner, 
a  demand  is  necessary  before  trover  can  be  main- 
tained for  its  conversion,  unless  such  person  has 
committed  some  wronoff  al  act  in  connection  there- 
with which  amounts  to  an  actual  conversion. 

Appeal  from  judgment  on  report  of  ref- 
eree. 

Action  of  trover  by  Esmay  against  Fan- 
ning for  the  conver.si()n  of  a  carriage.  It 
appeared  at  the  trial  l)efore  a  referee  that 
the  carriaire  \va.s  loaned  by  plaintiff  to  de- 
fendant, wlio  got  the  same  from  the  liv- 
ery stable  of  one  Crocker,  who  was  keep- 
ing it  for  plaintiff;  and  that  it  was  re- 
turned by  defendant  to  said  Crocker  as 
the  agent  of  plaintiff,  but  that  Crocker 
was  not  tlie  agent  of  the  plaintiff  to  re- 
ceive the  carriage;  that  Crocker  notified 
plaintiff  of  its  return  to  him,  and  plaintiff 
refused  to  have  anything  to  do  with  it, 
and  thereafter  demanded  it  of  defendant, 
and  then  brought  this  action.  The  ref- 
eree found  for  plaintiff,  and  defendant  ap- 
pealed. 

F.  S.  Edwards,  for  appellant.  H.  C. 
Van  Vorst,  for  respondent. 

WiLi.ARD,  J.  The  gist  of  this  action  is 
the  conversion  and  deprivation  of  the 
plaintiff's  property,  and  not  the  acquisi- 
tion of  property  by  the  defendant.  Key- 
worth  V.  Hill,  3  Barn  &  Aid.  (j><.3.  The  gen- 
eral requisites  to  maintain  the  action  are 
property  in  the  plaintiff;  actual  posses- 
sion or  a  right  to  the  immediate  posses- 
sion thereof;  and  a  wrongful  conver.sion 
by  the  defendant.  Conway  v.  Bush.  4 
Barb.  5G.5.  The  plaintiff's  title  was  not 
disputed  in  this  case.  The  Issue  is  on  the 
conversion ;  or,  in  other  Avords,  it  is 
whether  the  defendant  redelivered  the 
carriage  to  the  plaintiff  or  his  agent 
before  the  commencement  of  this  suit. 
The  plaintiff  alleges  a  refusal  to  redeliver 
it,  and  the  defendant  avers  that  he  did 
redeliver  it.  The  referee  found  the  fact 
that  the  defendant  did  not  redeliver  tiie 
carriage  to  the  plaintiff  or  his  agent,  and 
the  proof  is  that  Crocker,  to  whom  the 
defendant  did  deliver  the  carriage,  in  No- 
vember, 1S46,  was  not,  at  that  time,  the 
agent  of  the  plaintiff,  or  authorized  to 
receive  it.  And  there  is  no  evidence  that 
the  plaintiff  ever  assented  to  that  deliv- 
ery. The  question,  therefore,  becomes 
narrowed  down  to  this,  whether  a  bailee 
of  a  chattel  is  answerable  in  trover,  on 
showing  a  delivery  to  a  person  not  au- 
thorized to  receive  it.  In  Devereux  v.  Bar- 
clay, 2  Barn.  &  Aid.  702,  it  w-as  held  that 
trover  will  lie  for  the  misdeliA^ery  of  goods 
by  a  warehouseman,  although  such  mis- 
deliver3'  was  occasioned  bj-  mistake  only; 
and  this  court,  in  Packard  v.  Getman,  4 
"Wend.  613,  held  that  the  same  action 
would  lie  against  a  common  carrier  who 
had  delivered  the  goods  by  mistake  to  the 
wrong  person.  The  same  point  was  ruled 
by  Lord  Kkxyo.n  in  Youl  v.  Harbottle, 
Peake,  49,  and  by  the  English  common 
pleas  in  Stephenson  v.  Hart,  4  Bing.  476. 
If  trover  will  lie  against  a  common  car- 
rier or  a  warehouseman  for  a  misdelivery, 
it  can,  under  the  like  circumstances,  be 
sustained   against   a   bailee  for  hire  or  a 


gratuitous  bailee.  It  results,  from  the 
very  obligation  of  his  contract,  that  if  he 
fails  to  restore  the  article  to  the  rightful 
owner,  but  delivers  it  to  another  person, 
not  entitled  to  receive  it,  he  is  guilty  of  a 
conversion.  Story,  Bailm.  §  414.  The  ref- 
eree found  as  a  fact  that  the  carriage  was 
not  redelivered  to  the  plaintiff,  but  was 
delivered  to  another  person  having  no 
right  to  receive  it.  The  evidence  detailed 
in  the  case  warranted  that  finding,  and  it 
cannot  be  disturbed  by  this  court.  We 
think  the  referee  drew  the  right  conclu- 
sion from  that  fact,  and  justly  held  the 
defendant  liable  for  the  value  ()f  the  car- 
riage. 

As  the  parties  all  lived  in  the  same  city, 
the  carriage  should  have  been  returned 
to  the  plaintiff,  unless  there  was  some 
agreement  to  the  contrary.  The  fact  that 
the  carriage  was  stored  by  the  plaintiff  in 
Crocker's  stable,  at  the  time  the  defend- 
ant first  received  it,  did  not  authorize 
him.  under  a  contract  to  return  it  to  the 
plaintiff,  to  deliver  it  to  Crocker,  who  had 
ceased  to  be  the  plaintiff's  agent.  The 
place  of  delivery  of  the  carriage  was  the 
plaintiff's  residence.  Barns  v.  Graham.  4 
Cow.  452;  Story,  Bailm.  §§  257,  261,265. 
A  delivery  elsewhere,  without  authority, 
was  a  conversion.  We  have  not  adopted 
the  civil  law,  which  allowed  the  bailee,  in 
case  no  place  was  agreed  on,  to  restore 
the  property  to  the  place  from  which  he 
tocjk  it.     Id.  §  117. 

It  was  not  necessary  in  this  case  to 
prove  a  demand  and  refusal.  Had  the 
carriage  remained  in  the  defendant's  pos- 
session, no  action  could  have  been  main- 
tained by  the  plaintiff  against  the  defend- 
ant until  it  had  been  demanded,  and  the 
defendant  had  neglected  or  refused  to  re- 
turn it.  A  demand  and  refusal  are  not  a 
conversion,  but  evidence  from  which  it 
can  be  inferred.  A  demand  is  necessary 
whenever  the  goods  have  come  lawfully 
into  the  defendant's  possession,  unless  the 
plaintiff  can  prove  some  wrongful  act  of 
the  defendant  in  respect  of  the  goods  which 
amounts  to  an  actual  conversion.  2 
Leigh,  N.  P.  14S3;  Bates  v.  Conkling,  10 
AVend.  389;  Tomkins  v.  Haile,  3  Wend. 
406.  As  the  delivery  of  the  carriage  by 
the  defendant  to  Crocker  instead  of  the 
plaintiff  amounted  to  a  conversion,  proof 
of  a  demand  and  refusal  w^as  unnecessary. 
The  testimony*  of  Nichols,  therefore,  to 
prove  a  demand  was  immaterial;  and  the 
decision  of  the  referee,  refusing  to  permit 
the  defendant  to  prove  what  he  said  at 
the  time  the  demand  was  made,  could 
have  no  influence  on  the  result  of  the 
cause.  Had  a  demand  been  necessary,  the 
declaration  of  the  defendant  in  answer  to 
the  demand  would  have  been  admissible, 
as  well  on  the  part  of  the  defendant  as  of 
tlie  plaintiff.  The  decision  of  the  referee 
that  a  demand  and  refusal  were  admitted 
by  the  pleadings,  whether  right  or  wrong, 
worked  no  injury  to  the  defendant. 

A  wide  range  was  taken  on  the  argu- 
ment on  the  implied  obligations  resulting 
from  the  various  kinds  of  bailments,  and 
particularly  with  reference  to  the  restor- 
ing the  thing  bailed  to  the  bailor.  But  it 
seems  unnecessar\'  to  discuss  this  subject 
in    this  case,  because  here  there   was  an 


CONVERSION  OF  PERSONAL  PROPERTY. 


205 


express  agreement  to   return   the   proper- 
ty to  the  plaintiff  on  request. 
The  judgment  must  be  affirmed. 


(14  R.  I.  511.) 

Singer  Manufacturing  Co.  v.  King. 

(Supreme  Court  of  Rhode  Island.    June  2, 1884.) 

OoNVERSiox — Demand  an'd  Refusal  of  Agent. 

A  bailee  of  a  chattel,  who  has  received  the 
same  in  good  faith  from  a  person  other  than  the 
owner,  is  not  liable  for  conversion  in  refusing  to 
deliver  the  same  to  the  owner  on  demand  until  he 
has  had  time  to  satisfy  himself  in  regard  to  the 
ownership;  but  where  an  agent,  having  received 
a  chattel  from  a  fellow-employe,  who  directed 
him  not  to  deliver  it  to  the  owner  until  storage 
charges  were  paid,  refused  to  deliver  it  to  the 
owner  on  demand  because  the  latter  would  not 
pay  such  charges,  held,  that  the  agent  had  no 
right  to  impose  such  a  condition,  and  that  his  re- 
fusal to  give  up  the  chattel  was  a  conversion. 

Exceptions  from  court  of  common  pleas. 

Action  of  trover  by  the  Singer  Manu- 
facturing Company  against  Patrick  King 
for  conversion  of  a  sewing-machine.  A 
verdict  was  returned  for  defendant.  Plain- 
tiff alleged  exceptions. 

Z'lbn  O.  Slveum,  for  plaintiff.  Albert  D. 
Bean,  for  defendant. 

DuRFEE,  C.  J.  This  is  trover  for  the 
conversion  of  a  sewing-machine  belonging 
to  the  i)laintiff  company.  The  case  was 
tried  in  the  court  of  common  pleas,  and 
comes  here  on  exceptions.  The  testimony 
given  at  the  trial  for  the  plaintiff  went  to 
show  that  the  machine  was  demanded  of 
the  defendant  by  direction  of  Charles  H. 
Harris,  agent  for  the  plaintiff,  and  that 
tlie  defendant,  who  was  agent  for  the 
Aniei'ican  Sewing-Machine  Company, 
though  he  had  the  machine,  refused  to  de- 
liver it  until  storage  was  paid  for  It,  or 
until  another  machine  belonging  to  the 
American  Sewing-Machine  Company, 
which  the  plaintiff  had,  was  returned. 
The  defendant  testified  that  the  machine 
was  brought  to  him  by  one  Conner,  an 
emi)loye  of  the  American  Sewing-Machine 
Company;  that  he  was  instructed  to  hold 
it  for  storage;  and  that,  though  he  did 
not  announce  it  when  the  demand  was 
made,  the  plaintiff  knew  that  he  was 
agent  for  the  American  Sewing-Machine 
Company.  It  further  appeared  that  the 
machine  had  been  leased  to  a  Mrs.  Lynch 
by  the  plain  tiff  company  ;  that  Conner  had 
received  it  from  her,  leaving  a  machine  of 
the  American  Company  in  place  of  it ;  that 
he  had  carried  it  to  Harris,  and  that  Har- 
ris refused  to  receive  it,  saying  that  his 
rompanyhad  no  machines  out  which  were 
then  due;  that  he  then  carried  it  to  the 
American  Sewing-Machine  Company,  and 
told  Harris  that  he  had  done  it.  Harris 
testified  in  reply  that  he  did  not  see  the 
machine  t\'hen  Conner  brought  it,  and 
that  he  had  not  authorized  anyone  to  store 
It  with  the  American  CcMiipauj'. 

1.  The  ccjurt  insti-ucted  the  jury  that  if 
the  defendant,  when  demand  was  made 
upon  him.  was  the  agent  of  the  American 
Sewing-Machine  Company,  and  was  hold- 
ing the  machine  under  tiuMr  orders,  and 
not  for  himself,  or  under  his  own  control, 
then  the  defendant  would  not  be  guilty. 
The  plaintiff  excepted. 


2,  The  plaintiff  asked  the  court  to  in- 
struct the  jury  that  the  defendant  would 
be  guilty  unless  he  told  the  plaintiff  when 
the  demand  was  made  that  he  was  hold- 
ing the  machine  as  servant  of  the  Ameri- 
can Sewing-MachineCorapany.  Thecourt 
refused  so  to  instruct  the  jury,  but  tlid  in- 
struct them  that  the  defendant's  omission 
to  give  the  informatiun  would  not  consti- 
tute a  conversion,  but  would  be  evidence 
for  them  to  consider  in  determining  the 
question  as  to  whether  he  was  holding 
the  machine  as  agent  or  not.  The  plain- 
tiff excepted.  The  question  is,  were  the 
instructions  and  the  refusal  to  instruct 
correct? 

Ordinarily,  when  one  person  has  the 
chattel  of  another,  it  is  his  duty  to  deliver 
it  to  the  owner  or  his  agent  on  demand, 
and,  if  he  refuses  to  do  so,  his  refusal  is 
evidence  of  a  conversion.  It  is.  however, 
only  prima  facie  evidence,  and  may  be  ex- 
plained. Magee  V.  Scott, 9Cush.l4S;  Rob- 
inson V.  Burleigh,  5  N.  H.  22.5;  Dietus  v. 
Fuss,  8  Md.  14s ;  Green  v.  Dunn,  3  Camp. 
21.5;  Solomons  v.  Dawes,  1  Esp.  S3.  Thus 
it  is  no  conversion  for  the  bailee  of  a  chat- 
tel, who  has  received  it  in  good  faith  from 
some  person  other  than  the  owner,  to  re- 
fuse to  deliver  it  to  the  owner  making  de- 
mand for  it  until  he  has  had  time  to  satis- 
fy himself  in  regard  to  the  ownership. 
Carroll  v.  Mix.  51  Barb.  212;  Lee  v.  Baves, 
18  C.  B.  599.  (507;  Sheridan  v.  New  Quay 
Co.,  4  C.  B.  (N.  S.J  618;  Coles  v.  Wright,  4 
Taunt.  19S.  In  the  case  of  a  servant  who 
has  received  the  chattel  from  his  master, 
it  has  been  held  that  he  ought  not  to  give 
it  up  without  first  consulting  his  master 
in  regard  to  it.  Mires  v.  Solebay,  2  Mod. 
242,  245;  Alexander  v.  Southey,  5  Barn.  & 
Aid.  247;  Berry  v.  Vantries,  12  Serg.  &  R. 
89.  But  if,  after  having  had  an  opportuni- 
ty to  confer  with  his  master,  he  relies  on 
his  master's  title,  and  absolutely  refuses 
to  comply  with  the  demand,  he  will  be  lia- 
ble for  a  conversion.  Lee  v.  Robinscn,  25 
Law  J.  C.  P.  249,  18C.  B.599;  1  Add.  Torts, 
§475;  Green  way  v.  Fisher,  1  Car.  &  P.  190; 
Stephens  v.  Elwall.  4  Maule  &  S.  259;  Per- 
kins V.  Smith,  1  Wils.  32S;  Gage  v.  Whit- 
tier,  17  N.  H.  312.  The  mere  fact  that  he 
refuses  for  the  benefit  of  his  principal  will 
not  protect  him.  Kimball  v.  Billings,  55 
Me.  147. 

In  the  case  at  bar  the  defense  is  that  the 
defendant,  acting  as  agent  of  the  American 
Sewing-Machine  Company,  refused  to  de- 
liver the  machine  in  obedience  to  instruc- 
tions not  to  deliver  it  until  storage  was 
paid  for  it.  Tlie  defi?ndant  did  not  refuse 
for  the  purpose  of  consulting  his  principal, 
but  it  would  seem  that  he  had  received  his 
instructions  before  the  demand  in  antici- 
pation of  it.  He  was  not  a  mere  servant, 
but  an  agent,  and  he  may  have  been,  for 
an^'thing  that  appears,  a  general  agent. 
The  machine  came  to  him.  not  from  his 
master  or  principal,  as  in  Mires  v.  Solebay, 
but  from  a  fellow  employe;  and  he  may 
have  known,  indeed  the  evidence  carries 
the  impression  that  he  did  know,  all  the 
circumstances  in  regard  to  it.  and  never- 
theless co-operated  with  his  principal  in 
withholding  it  from  its  owner  b\' insisting 
on  a  condition  which  neither  he  nor  his 
principal  had  any  right  to  impose.    If  such 


206 


LAW  OF  TORTS. 


was  the  fact,  we  think  he  was  guilty;  aud 
yet,  if  such  was  the  fact,  the  jury  might 
have  founrl  hiin  nut  guilt3%  under  the  in- 
structions given  by  the  court  which  are 
the  ground  of  the  first  exception.  The 
first  exception  must  therefore  besustained*. 


We  do  not  find  any  error  in  the  instruc- 
tions which  are  the  ground  of  the  second 
exception, except  in  so  far  as  they  involve 
a  repetition  of  instructions  before  given. 
The  case  will  be  remitted  for  new  trial. 
Exceptions  sustained. 


(See,  also,  Gilmore  v.  Newton,  9  Allen,  171;  Pease  v.  Smith,  61  N.  Y.  477;  Hewitt  v.  Estelle,  93 
Ql.  21S;  Galvin  v.  Bacon,  11  Me.  28;  Dearbourn  v.  Bank,  58  Me.  273;  WykofC  v.  Stevenson,  46  N.  J.  Law, 
526;  Goodwin  v.  Wertheimer,  99  N.  Y.  14y,  1  N.  E.  Kep.  404;  Edmunds  v.  Hill,  133  Mass.  445.) 


LIABILITY  OF  PUBLIC   OFFICERS   FOR  OFFICIAL 

ACTS. 


I.  JUDICIAL  OFFICERS. 


(13  Wall.  335.) 

Bradley  v.  Fisher. 

(Supreme  Court  of  United  States.    Dec.  Term, 
1871.) 

1.  Judge — Liability  for  Judicial  Acts. 
Judges  of  courts  of  superior  or  general  juris- 
diction are  not  liable  to  civil  actions  for  their 
judicial  acts,  even  when  such  acts  are  in  excess 
•of  their  jurisdiction,  and  are  alleged  to  have  been 
done  maliciously  or  corruptly;  although  there  is 
no  such  exemption  where  there  is  clearly  no  ju- 
risdiction over  the  subject- matter,  and  such  want 
of  jurisdiction  is  known  to  the  judge. 

2.  Same  —  Striking   Name    of   Attorney  from 

Roll. 

An  order  of  the  criminal  court  of  the  District 
of  Columbia,  made  in  1867,  recited  that  plaintiff, 
an  attorney  practicing  in  the  court,  threatened 
the  presiding  justice,  as  he  was  descending  from 
the  bench,  with  personal  chastisement  for  alleged 
conduct  of  the  judge  during  the  progress  of  a 
criminal  trial  then  pending,  and  directed  that 
plaintiff's  name  be  stricken  from  the  roll  of  at- 
torneys practicing  in  the  court.  Held,  that  the 
court,  being  at  that  time  a  separate  and  inde- 
pendent court,  having  general  criminal  jurisdic- 
tion, possessed  the  power  to  make  such  order; 
that  the  matters  recited  in  the  order  were  ample 
ground  for  the  action  of  the  court  in  making  it ; 
and  that,  though  the  court  erred  in  not  citing 
plaintiff  before  making  such  order,  to  show  cause 
why  it  should  not  be  made,  and  to  afford  him 
opportunity  for  explanation  or  defense  or  apology, 
such  error,  however  it  might  have  affected  the 
validity  of  the  act,  did  not  make  it  any  the  less 
a  judicial  act;  nor  did  it  render  the  judge  mak- 
ing the  order  liable  in  damages  to  plaintiff,  as 
though  the  court  had  proceeded  without  having 
any  jurisdiction  whatever  over  its  attorneys. 

Davis  and  Clifford,  JJ.,  dissenting. 

Error  to  tlie  supreme  court  of  the  Dis- 
trict of  Columbia. 

Action  by  Joseph  H.  Bradley  against 
George  P.  Fisher  for  damages  alleged  to 
have  been  sustained  by  plaintiff  "by  rea- 
son of  the  willful,  malicious,  oppressive, 
and  tyrannical  acts  and  conduct"  of  de- 
fendant, as  a  judge,  in  making  an  order  of 
court  striking  the  name  of  plaintiff  from 
the  roll  of  attorneys.  The  jury  found  a 
verdict  for  defendant.  To  review  tlie 
judgment  entered  thereon  plaintiff  brought 
a  writ  of  error. 

i7.   M.    Harris    and    K.    T.  Merrick,  for 


plaintiff  in  error.    A.  G.  Riddle  and  W.  A. 
Cook,  for  defendant  in  error. 

Field,  J.  In  1867  the  plaintiff  was  a 
member  of  the  bar  of  the  supreme  court  of 
the  District  of  Columbia,  and  tlie  defend- 
ant was  one  of  the  justices  of  tliat  court. 
In  June  of  that  year  the  trial  of  one  John 
H.  Suratt  for  the  murder  of  Abraham 
Lincoln  was  commenced  in  the  criminal 
court  of  the  district,  and  was  continued 
until  the  10th  of  the  following  August, 
when  the  jury  were  discharged  in  conse- 
quence of  their  Inability  to  agree  upon  a 
verdict.  The  defendant  held  that  court, 
presiding  at  the  trial  of  Suratt  from  its 
commencement  to  its  close,  and  the  plain- 
tiff was  one  of  the  attorneys  who  defend- 
ed the  prisoner.  Immediately  upon  the 
discharge  of  the  jury,  the  court,  thus  held 
by  the  defendant,  directed  an  order  to  be 
entered  on  its  records  striking  the  name  of 
the  plaintiff  from  the  roll  of  attorneys 
practicing  in  that  court.  The  order  was 
accompanied  by  a  recital  that  on  the  2d 
of  July  preceding,  during  the  progress  of 
the  trial  of  Suratt,  immediately  after  the 
court  had  taken  a  recess  for  the  day,  as 
the  presiding  judge  was  descending  from 
the  bench  he  had  been  accosted  in  a  rude 
and  insulting  manner  by  the  plaintiff, 
charging  him  with  having  offered  the  plain- 
tiff a  series  of  insults  from  the  bench  from 
the  commencement  of  the  trial;  that  the 
judge  had  then  disclaimed  any  intention 
of  passing  any  insult  whatever,  and  had 
assured  the  plaintiff  that  he  entertained 
for  him  no  other  feelings  than  those  of 
respect;  but  that  the  plaintiff,  so  far  from 
accepting  this  explanation  or  disclaimer, 
had  threatened  the  judge  with  personal 
chastisement.  The  plaintiff  appears  to 
have  regarded  this  order  of  the  criminal 
court  as  an  order  disbarring  him  from  the 
supreme  court  of  the  District;  and  the 
wliole  theory  of  the  present  action  pro- 
ceeds upon  that  hypothesis.  The  declara- 
tion in  one  count  describes  the  criminal 
court  as  one  of  the  branches  of  the  su- 
preme court,  and  in  the  other  count  repre- 
sents the  order  of  the  criminal  court  as  an 
order    removing    the    plaintiff    from    the 


LIABILITY  OF  PUBLIC  OFFICERS  FOR  OFFICIAL  ACTS. 


207 


■office  of  an  attorney  at  law  in  the  supreme 
court  of  the  District;  and  it  is  for  the  sup- 
posed removal  from  that  court,  and  the 
assumed  damages  consequent  thereon, 
that  the  action  is  brought.  Yet  the  crim- 
inal court  of  the  District  was  at  that  time 
a  separate  a  ad  independent  court,  and  as 
distinct  from  the  supreme  court  of  the  Dis- 
trict as  the  circuit  court  is  distinct  from 
the  supreme  court  of  the  United  States. 
Its  distinct  and  independent  character 
was  urged  by  the  plaintiff,  and  success- 
fullj'  urged,  in  this  court,  as  ground  for 
relief  against  the  subsequent  action  of  the 
supreme  court  of  the  District,  based  upon 
what  had  occurred  in  the  criminal  court ; 
and,  because  of  its  distinct  and  independ- 
ent character,  this  court  held  that  the  su- 
preme court  of  the  District  possessed  no 
power  to  punish  the  plaintiff  on  account 
of  contemptuousconduct  and  language  be- 
fore the  criminal  court  or  in  the  presence 
of  its  judge.  By  this  decision,  which  was 
rendered  at  the  December  term  of  1868, 
( Ex  parteBradley,  7  Wall.  364, )  the  ground- 
work of  the  present  action  of  the  plaintiff 
is  removed.  The  law  which  he  success- 
fully invoked,  and  which  protected  him 
when  he  complained  of  the  action  of  the 
supreme  court  of  the  District,  must  now 
equally  avail  for  the  protection  of  the  de- 
fendant, when  it  is  attempted  to  give  to 
the  criminal  court  a  position  and  power 
which  were  then  denied.  The  order  of  the 
criminal  court,  as  it  was  then  constituted, 
was  not  an  order  of  the  supreme  court  of 
the  District,  nor  of  one  of  the  branches  of 
that  court.  It  did  not,  for  we  know  that 
in  law  it  could  not,  remove  the  plaintiff 
from  the  ofhce  of  an  attorney  of  that 
court,  nor  affect  his  right  to  practice 
therein. 

This  point  is  distinctly  raised  by  the  spe- 
cial plea  of  the  defendant,  in  which  he  sets 
up  that  at  the  time  the  order  complained 
of  was  made,  he  was  regularly  and  law- 
fully holding  the  criminal  court  of  the  Dis- 
trict, a  court  of  record,  having  general  ju- 
risdiction for  the  trial  of  crimes  and 
offenses  arising  within  the  District,  and 
that  the  order  complained  of  was  an  or- 
der of  the  criminal  court,  made  by  him  in 
the  lawful  exercise  and  performance  of  his 
authority  and  duty  as  its  presiding  jus- 
tice, for  official  misconduct  cf  the  plaintiff, 
as  one  of  its  attorneys  in  his  presence;  and 
upon  this  plea  the  plaintiff  joined  issue. 
The  court  below,  therefore,  did  not  err  in 
excluding  the  order  of  removal  as  evidence 
in  the  cause,  for  the  obvious  reason  that 
it  did  not  establish,  nor  tend  to  establish, 
the  removal  of  the  plaintiff  by  any  order 
of  the  defendant,  or  of  the  court  held  by 
him.  from  the  bar  of  the  supreme  court  of 
the  District.  And  the  refusal  of  the  court 
below  to  admit  evidence  contradicting  the 
recitals  in  that  order  could  not  be  the 
ground  of  any  just  exception,  when  the 
order  itself  was  not  pertinent  to  any  issue 
presented.  Nor  is  this  conclusion  affected 
by  the  act  of  congress  passed  in  June,  1870, 
nearly  three  years  after  the  order  of  re- 
moval was  made,  and  nearly  two  years 
after  the  present  action  was  commenced, 
changing  the  independent  character  of 
the  criminal  court,  and  declaring  that  its 
judgments,  decrees,  and  orders   should   be 


deemed  the  judgments,  decrees,  and  orders 
of  the  supreme  court  of  the  District.  (16 
St.  at  Large,  160.)  If  the  order  of  removal 
acquired  from  this  legislation  a  wider 
scope  and  operation  than  it  possessed 
when  made,  the  defendant  is  not  responsi- 
ble for  it.  The  original  act  was  not  al- 
tered. It  was  still  an  order  disbarring  the 
plaintiff  only  from  the  criminal  court,  and 
any  other  consequences  are  attributable 
to  the  action  of  congress,  and  not  to  any 
action  of  the  defendant. 

But  this  is  not  all.  The  plea,  as  will  be 
seen  from  our  statement  of  it,  not  only 
sets  up  that  the  order  of  which  the  plain- 
tiff complains  was  an  order  of  the  crim- 
inal court,  but  that  it  was  made  by  the 
defendant  in  the  lawful  exercise  and  per- 
formance of  his  authority  and  duty  as  its 
presiding  justice.  In  other  words,  it  sets 
up  that  the  order  for  the  entry  of  which  the 
suit  is  brought  was  a  judicial  act,  done 
by  the  defendant  as  the  presiding  justice 
of  a  court  of  general  criminal  jurisdiction. 
If  such  were  the  character  of  the  act  and 
the  jurisdiction  of  the  court,  the  defendant 
cannot  be  subjected  to  responsibility  for 
it  in  a  civil  action,  however  erroneous  the 
act  may  have  been,  and  however  injuri- 
ous in  its  consequences  it  may  have  proved 
to  the  plaintiff.  For  it  is  a  general  prin- 
ciple of  the  highest  importance  to  the 
proper  administration  of  justice  that  a  ju- 
dicial officer,  in  exercising  the  authority 
vested  in  him,  shall  be  free  to  act  upon  his 
own  convictions,  without  apprehension  of 
personal  consequences  to  himself.  Liabil- 
ity to  answer  to  every  one  who  might  feel 
himself  aggrieved  by  the  action  of  the  judge 
would  be  inconsistent  with  the  possession 
of  this  freedom,  and  would  destroy  that 
independence  without  which  no  judiciary 
can  be  either  respectable  or  useful.  As 
observed  by  a  distinguished  English  judge, 
it  would  establish  the  weakness  of  judi- 
cial authority  in  a  degrading  responsi- 
bility. (Justice  M.4YNE,  in  Taaffe  v. 
Downes,  reported  in  a  note  to  3  Moore, 
P.  C.  41.) 

The  principle,  therefore,  which  exempts 
judges  of  courts  of  superior  or  general  au- 
thorit3'  from  liability  in  a  civil  action  for 
acts  done  by  them  in  the  exercise  of  their 
judicial  functions,  obtains  in  all  countries 
where  there  is  any  well-ordered  system  of 
jurisprudence.  It  has  been  the  settled  doc- 
trine of  the  English  courts  for  many  cent- 
uries, and  has  never  been  denied,  that  we 
are  aware  of,  in  the  courts  of  this  country. 
It  has,  as  Chancellor  Kent  observes,  "a 
deep  root  in  the  common  law.  "  Yates  v. 
Lansing,  5  Johns.  291. 

Nor  can  this  exemption  of  the  judges 
from  civil  liabilitj*  be  affected  by  the  mo- 
tives with  which  their  judicial  acts  are 
performed.  The  purity  of  their  motives 
cannot  in  this  way  be  the  subject  of  judi- 
cial inquiry.  This  was  adjudged  in  the  Case 
of  Floyd  and  Barker,  reported  by  Coke, 
in  1608,(12  Coke,  L'5,)  where  it  was  laid 
down  that  the  judges  of  the  realm  could 
not  be  drawn  in  question  for  any  sup- 
posed corruption  impeaching  the  verity 
of  their  records,  except  before  the  king 
himself;  and  it  was  observed  that,  if  they 
were  required  to  answer  otherwise,  it 
would  "tend  tothescandal  and  subversion 


208 


LAW  OF  TOUTS. 


of  all  justice,  and  those  who  are  the  most 
sincere  would  not  be  free  from  continual 
calumniations."  The  truth  of  this  latter 
observation  is  manifest  to  all  persons  hav- 
ing much  experience  with  judicial  proceed- 
ings in  the  superior  courts.  Controversies 
involving  not  merely  great  pecuniary  in- 
tei-ests,  but  the  liberty  and  character  of 
the  parties,  and  consequently  exciting  the 
deepest  feelings,  are  being  constantly  de- 
termined in  those  courts,  in  which  there 
is  great  conflict  in  the  evidence,  and  great 
doubt  as  to  the  law  which  should  govern 
their  decision.  It  is  this  class  of  cases 
which  imposes  upon  the  judge  the  severest 
labor,  and  often  creates  in  his  mind  a  pain- 
ful sense  of  responsibility.  Yet  it  is  precise- 
ly in  this  class  of  cases  that  the  losing 
party  feels  most  keenly  the  decision 
against  him,  and  most  readily  accepts 
anything  but  the  soundness  of  the  decis- 
ion in  explanation  of  the  action  of  the 
judge.  Just  in  proportion  to  the  strength 
of  his  convictions  of  the  correctness  of  his 
own  view  of  the  case  is  he  apt  to  complain 
of  the  judgment  against  him,  and  from 
complaints  of  the  judgment  to  pass  to  the 
ascu'iption  of  improper  motives  to  the 
judge.  When  the  controversy  involves 
questions  affecting  large  amounts  of  prop- 
erty, or  relates  to  a  matterof  general  pub- 
lic concern,  or  touches  the  interests  of  nu- 
merous parties,  the  disappointment  occa- 
sioned by  an  adverse  decision  often  finds 
vent  in  imputations  of  this  character,  and 
from  the  Imperfection  of  human  nature 
this  is  hardh'  a  subject  of  wonder.  If  civil 
actions  could  be  maintained  in  such  cases 
against  the  judge,  because  the  losing  party 
should  see  fit  to  allege  in  his  complaint 
that  the  acts  of  the  judge  were  done  with 
partiality,  or  maliciously,  or  corruptly, 
the  protection  essential  to  judicial  inde- 
pendence would  be  entirely  swept  away. 
Few  persons  sufficiently  irritated  to  insti- 
tute an  action  against  a  judge  for  his  ju- 
dicial acts  would  hesitate  to  ascribe  any 
character  to  the  acts  which  would  be  es- 
sential to  the  maintenance  of  the  action. 
If,  upon  such  allegations,  a  judge  could 
be  compelled  to  answer  In  a  civil  action 
for  his  judicial  acts,  not  only  would  his 
office  be  degraded  and  his  usefulness  de- 
stroyed, but  he  would  be  subjected  for  his 
protection  to  the  necessity  of  preserving  a 
complete  record  of  all  the  evidence  pro- 
duced before  him  in  every  litigated  case, 
and  of  the  authorities  cited  and  arguments 
presented,  in  order  that  he  might  be  able 
to  show,  to  the  judue  before  whom  he 
might  be  summoned  by  the  losing  party, 
— and  that  judge,  perhaps,  one  of  an  infe- 
rior jurisdiction, — that  he  had  decided  as 
he  did  with  judicial  integrity ;  and  the  sec- 
ond judge  would  be  subjected  to  a  similar 
burden,  as  he,  in  his  turn,  might  also  be 
held  amenable  by  the  losing  party. 

Some  just  observations  on  this  head  of 
the  late  Chief  Justice  Shaw  will  be  found 
in  Pratt  v.  Gardner,  2  Cush,  68,  and  the 
point  here  was  adjudged  in  the  recent 
case  of  Fray  v.  Blackburn.  3  Best  &  S.576. 
by  the  queen's  bench  of  England.  One  of 
the  judges  of  that  bench  was  sued  for  a  ju- 
dicial act,  and  on  demurrer  one  of  the  ob- 
jections taken  to  the  declaration  was  that 
it  was  bad  in  not  alleging   malice.    Judg- 


ment on  the  demurrer  having  passed  for 
the  defendant,  the  plaintiff  applied  for 
leave  to  amend  his  declaration  by  intro- 
ducing an  allegation  of  malice  and  corrup- 
tion; but  Mr.  Justice  Cromptox  replied: 
"It  is  a  principle  of  our  law  that  no  ac- 
tion will  lie  against  a  judge  of  one  of  the 
superior  courts  for  a  judicial  act,  though 
it  be  alleged  to  have  been  done  malicious- 
ly and  corruptly,  therefore  the  proposed 
allegation  would  not  make  the  declara- 
tion good.  The  public  are  deeply  inter- 
ested in  this  rule,  which,  indeed,  exists  for 
their  benefit,  and  was  established  in  order 
to  secure  the  independence  of  the  judges, 
and  prevent  them  being  harassed  by  vex- 
atious actions;"  and  the  leave  was  re- 
fused. 

In  this  country  the  judges  of  the  supe- 
rior courts  of  record  ai'e  only  responsible 
to  the  people,  or  the  authorities  consti- 
tuted !>y  the  people  from  whom  they  re- 
ceive their  commissions,  for  the  manner 
in  which  they  discharge  the  great  trusts 
of  their  office.  If,  in  the  exercise  of  the 
powers  with  which  they  are  clothed  as 
ministers  of  justice,  they  act  with  partial- 
ity, or  maliciously,  or  corruptly,  or  arbi- 
traril3',or  oppressively, they  maybe  called 
to  an  af count  by  impeachment,  and  sus- 
pended or  removed  from  office.  In  some 
states  they  may  be  thus  suspended  or  re- 
moved without  impeachment,  by  a  vote 
of  the  two  houses  of  the  legislature. 

In  the  case  of  Bandall  v.  Brigham,  7 
Wall.  523,  decided  by  this  court  at  the  De- 
cember term  of  1868,  we  had  occasion  to 
consider  at  some  length  the  liability  of  ju- 
dicial officers  to  answer  in  a  civil  action 
for  their  judicial  acts.  In  that  case  the 
plaintiff  had  been  removed  by  the  defend- 
ant, who  was  one  of  the  justices  of  the  su- 
perior court  of  Massachusetts,  from  the 
bar  of  that  state;  and  the  action  was 
brought  for  such  removal,  which  was  al- 
leged in  the  declaration  to  have  been  made 
Avithout  lawful  authority,  and  wantonly, 
arbitrarily,  and  oppressively.  In  consid- 
ering the  questions  presented,  the  court 
observed  that  it  was  a  general  i)rinciple, 
applicable  to  all  judicial  officers,  that  they 
were  not  lialile  to  a  civil  action  for  any  ju- 
dicial act  done  by  them  within  their  juris- 
diction; that  with  reference  to  judges  of 
limited  and  inferior  authority  it  had  been 
held  that  they  were  protected  only  when 
they  acted  within  their  jurisdiction  ;  that, 
if  this  were  the  case  with  respect  to  them, 
no  such  limitation  existed  with  respect  to 
judges  of  superior  or  general  authority; 
that  they  were  not  liable  in  civil  actions 
for  their  judicial  acts,  even  when  such  acts 
were  in  excess  of  their  jurisdiction.  "  un- 
less, perhaps,  when  the  acts  in  excess  of 
jurisdiction  ai*e  done  maliciously  or  cor- 
ruptly." The  qualifying  words  were  in- 
serted upon  the  suggestion  that  the  pre- 
vious language  laid  down  the  doctrine  of 
judicial  exemption  from  liabilitj'  to  civil 
actions  in  terms  broader  than  was  neces- 
sary for  the  case  under  consideration,  and 
that  if  the  language  remain  unqualified  it 
would  require  an  explanation  of  some  ap- 
parentlj' conflicting  adjudicationsfound  in 
the  reports.  They  were  not  intended  as 
an  expression  of  opinion  that  in  the  cases 
supposed   such   liability  would   exist,  but 


LIABILITY  OF  PUBLIC  OFFICERS  FOR  OFFICIAL  ACTS. 


209 


to  avoid  the  expression  of  a  contrary  doc- 
trine. 

In  the  present  case  we  have  looked  into 
the  authorities,  and  are  clear  from  them, 
as  well  as  from  the  principle  on  wliich  any 
exemption  is  maintahied,  that  the  quali- 
fyin^jj  words  used  were  not  necessary  to  a 
correct  statement  of  the  Iciw,  and  tliat 
juda;es  of  coui-ts  of  superior  or  general  ju- 
risdiction are  not  liable  tocivil  actions  fv)r 
their  judicial  acts,  even  when  such  acts 
are  in  excess  of  their  jurisdiction,  and  are 
alleged  to  have  been  done  maliciously  or 
corruptly.  A  distinction  must  be  here  «jb- 
served  between  excess  of  jurisdiction  and 
the  clear  absence  of  all  jurisdiction  over 
the  subject-matter.  Where  there  is  clearly 
no  jui'isdiction  ovev  the  subject-matter, 
any  authority  exercised  is  a  usurped  au- 
thority; and  for  the  exercise  of  such  an- 
thority,  when  the  want  of  jurisdiction  is 
known  to  the  judge,  no  excuse  is  permis- 
sible. But  where  jurisdiction  over  the 
subject-matter  is  invested  by  law  in  the 
judge,  or  in  the  court  which  he  holds,  the 
manner  and  extent  in  which  the  jurisdic- 
tion shall  be  exercised  are  generally  as 
much  questions  for  his  determination  as 
any  other  questions  involved  in  the  case, 
although  upon  the  correctness  of  his  de- 
termination in  these  particulars  the  valid- 
ity of  his  judgments  may  depend.  Thus  if 
a  probate  court,  invested  only  with  au- 
thority over  wills  and  the  settlement  of 
estates  of  deceased  persons,  should  proceed 
to  try  parties  for  public  offenses,  jurisdic- 
tion over  the  subject  of  offenses  being  en- 
tirely wanting  in  the  court,  and  this  being 
necessarily  known  to  its  judge,  his  com- 
mission would  afford  no  protection  to  him 
in  the  exercise  of  the  usurped  authority. 
But  if,  on  the  other  hand,  a  judge  of  a 
criminal  court, invested  with  general  crim- 
inal jurisdiction  over  offenses  committed 
within  a  certain  district,  should  hold  a 
particular  act  to  be  a  public  offense,  which 
is  not  by  the  law  made  an  offense,  and 
proceed  to  the  arrest  and  trial  of  a  part.y 
charged  with  such  act,  or  should  sentence 
a  party  convicted  to  agreater punishment 
than  that  authorized  by  the  law  upon  its 
proi)er  construction,  no  personal  liability 
to  civil  action  for  such  acts  would  attach 
to  the  judge,  although  those  acts  would 
be  in  excess  of  his  jurisdiction,  or  of  the 
jurisdiction  of  the  court  held  by  him;  for 
these  are  particulars  for  his  judicial  con- 
sideration, whenever  his  genei'al  jurisdic- 
tion over  the  subject-matter  is  invoked. 
Indeed,  some  of  the  most  dithcult  and  em- 
barrassing questions  which  a  judicial  offi- 
cer is  called  upon  to  consider  and  deter- 
mine relate  to  his  jurisdiction,  or  that  of 
the  court  held  by  him,  or  the  manner  in 
which  the  jurisdiction  .shall  be  exercised. 
And  the  same  princiide  of  exemption  from 
liability  which  obtains  for  errors  com- 
mitted in  the  ordinary  prosecution  of  a 
suit  where  tliere  is  jurisdiction  of  both 
subject  and  person  applies  in  cases  of  this 
kind,  and  for  the  same  reasons. 

The  distinction  here  made  between  acts 
done  in  excess  of  jurisdiction,  and  acts 
where  no  jurisdiction  whatever  over  the 
subject-matter  exists,  was  taken  by  the 
court  of  king's  bench  in  .^I'kerley  v.  Park- 
inson, R  Maule  »&  S.  411.  In  that  case  an 
CHASE — 14 


action  was  brought  against  the  vicar- 
general  of  the  bishop  of  Chester,  and  his 
surrogate,  who  held  the  consistorial  and 
episcopal  court  of  the  bishop,  for  excom- 
municating the  plaintiff  with  the  greater 
excommunication  ft)r  contumacy,  in  not 
taking  upon  himself  the  administration  of 
an  intestate's  effects,  to  whom  the  plain- 
tiff was  next  of  kin  ;  the  citation  issued  to 
him  being  void,  and  having  been  so  ad- 
judged. The  question  piesented  was 
whether,  under  these  circumstances,  the 
action  would  lie.  The  citation  being  void, 
the  plaintiff  had  not  been  legally  brought 
before  the  court,  and  the  subsequent  pro- 
ceedings were  set  aside,  on  a[)peal,on  that 
ground.  Lord  Ellenborough  observed 
that  it  was  his  opinion  that  the  action 
was  not  maintainable  if  the  ecclesiastical 
court  had  a  general  jurisdiction  over  the 
subject-matter,  although  the  citation  was 
a  nullity,  and  said  that  "no  authority 
had  been  cited  to  show  that  the  judge 
would  be  liable  to  an  action  where  he  has 
jurisdiction,  but  has  proceeded  erroneous- 
ly, or,  as  it  is  termed,  inverso  ordine." 
Mr.  Justice  Blanc  said  there  was  "a  ma- 
terial distinction  between  a  case  where  a 
party  comes  to  an  erroneous  conclusion 
in  a  matter  over  which  he  has  jurisdiction 
and  a  case  where  he  acts  wholly  without 
jurisdiction;"  and  held  that  where  the 
subject-matter  was  within  the  jurisdiction 
of  the  judgf,  and  the  conclusion  was  er- 
roneous, although  the  party  should  by 
reason  of  the  error  be  entitled  to  have  the 
conclusion  set  aside,  and  to  be  restored  to 
his  former  rights,  yet  he  was  not  entitled 
to  claim  compensation  in  damages  for  the 
injury  done  by  such  erroneous  conclusion, 
as  if  the  court  had  proceeded  without  any 
jurisdiction. 

The  exemption  of  judges  of  the  superior 
courts  of  record  from  liability  to  civil  suit 
for  their  judicial  acts  existing  when  there 
isjurisdiction  of  the  subject-matter,  though 
irregularity  and  error  attended  the  exer- 
cise of  the  jurisdiction,  the  exemption  can- 
not be  affected  by  any  consideration  of  the 
motives  with  which  the  acts  are  done. 
The  allegation  of  malicious  or  corrupt  mo- 
tives could  always  be  made,  and,  if  the 
motives  could  be  inquired  into,  judges 
would  be  subjected  to  the  same  vexatious 
litigation  upon  such  allegati(jns,  whether 
the  motives  had  nor  had  not  anj'  real  ex- 
istence. Against  the  consequences  of  their 
erroneous  or  iri-egular  action,  from  what- 
ever motives  proceeding,  the  law  has  pro- 
vided for  private  parties  numerous  reme- 
dies, and  to  those  remedies  they  must,  in 
such  cases,  resort.  But  for  malice  or  cor- 
ruption in  their  action,  while  exercising 
their  judicial  functions  within  the  general 
scope  of  their  jurisdiction,  the  judges  of 
these  courts  can  only  be  reached  by  pu*?- 
lic  prosecution  in  the  form  of  impeach- 
ment, or  in  such  other  form  as  may  be 
specially  prescribed. 

If,  now,  we  apply  the  principle  thus 
stated,  the  question  presented  in  this  ca.se 
is  one  of  easy  solution.  The  criminal 
court  of  the  District,  as  a  court  of  general 
criminal  jurisdiction,  possessed  the  power 
to  strike  the  name  of  the  plaintiff  from 
its  rolls  as  a  practicing  attorney.  This 
power  of  removal  from  the  bar  is  possessed 


210 


LAW  OF  TORTS. 


by  all  courts  which  have  authority  to  ad- 
niit  attorneys  to  practice.  It  is  a  power 
which  should  only  be  exercised  for  the 
most  weij^htj-  reasons,  such  as  would  ren- 
der the  continuance  of  the  attorney'  in 
practice  incompatible  with  a  proper  re- 
spect of  the  court  for  itself,  or  a  proper  re- 
gard for  the  integrity' of  the  profession; 
and  except  where  matters  occurring  in 
open  court,  in  presence  of  the  judges,  con- 
stitute the  grounds  of  its  action,  the  pow- 
er of  the  court  should  never  be  exercised 
without  notice  to  the  offending  party  of 
the  gr<jundsof  complaint  against  him,  and 
affording  him  ample  opportunity  of  ex- 
planation and  defense.  This  is  a  rule  of 
natural  justice,  and  is  as  applicable  to 
cases  where  a  proceeding  is  taken  to  reach 
the  right  of  an  attorney  to  practice  his 
profession  as  it  is  when  the  proceeding  is 
taken  to  reach  his  real  or  personal  prop- 
erty ;  and  even  where  the  matters  consti- 
tuting the  groundii  of  complaint  have  oc- 
curred in  open  court,  under  the  personal 
observation  of  the  judges,  the  attorney 
should  ordinarily  be  heard  before  the  or- 
der of  removal  is  made,  for  those  matters 
niay  not  be  inconsistent  with  the  absence  of 
improper  motives  on  his  part,  or  may  be 
suscei)tible  of  such  explanation  as  would 
mitigate  the'r  offensive  character,  or  he 
may  be  ready  to  make  all  proper  repara- 
tion and  apology.  Admission  as  an  attor- 
ney is  not  obtained  without  years  of  labor 
and  study.  The  office  which  the  party 
thus  acquires  is  one  of  value,  and  often 
becomes  the  source  of  great  honor  and 
einoiunient  to  its  possessor.  To  most  per- 
sons who  enter  the  profession  it  is  the 
means  of  support  to  them.selves  and  their 
families.  To  deprive  one  of  an  otHce  of 
this  character  would  often  be  to  decree 
poverty  to  himself,  and  destitution  to  his 
family.  A  remt)val  from  the  bar  should 
therefore  never  be  decreed  where  any  pun- 
ishment less  severe,  such  as  reprimand, 
temporary  suspension,  or  fine,  would  ac- 
complish the  end  desired.  But.  on  the  oth- 
er hand,  the  otiligation  which  attoruej's 
impliedly  assume,  if  they  do  not  by  express 
declaration  take  upon  themselves,  when 
they  are  admitted  to  the  bar,  is  not  mere- 
ly to  be  obedient  to  the  constitution  and 
laws,  but  to  maintain  at  all  times  the  re- 
spect due  to  courts  of  justice  and  judicial 
officers.  This  obligation  is  not  discharged 
by  merely  observing  the  rules  of  courteous 
demeanor  in  open  court,  but  it  includes 
abstaining  out  of  cotirt  from  all  insulting 
language  and  offensive  conduct  towards 
the  judges  personally  for  their  judicial 
acts.  "In  matters  collateral  to  official 
duty,"  said  Chief  Justice  Gibson  in  the  Case 
of  Austin,  5  Rawle,  204,  "the  judge  is  on  a 
level  with  the  members  of  the  bar  as  he  is 
with  his  fellow-citizens,  his  title  to  dis- 
tinction and  respect  resting  on  no  other 
foundation  than  his  virtues  and  qualities 
as  a  man.  Rut  it  is  nevertheless  evident 
that  professional  fidelity  may  be  violated 
by  acts  which  fall  without  the  lines  of 
professional  functions,  and  which  may 
have  been  performed  out  of  the  pale  of  the 
court.  Such  would  be  the  consequences  of 
beating  or  insulting  a  judge  in  the  street 
for  a  judgment  in  court.  No  one  would 
pretend   that  an   attempt   to  control  the 


deliberation  of  the  bench  by  the  appre- 
hension of  violence,  and  subject  the  judges 
to  the  power  of  those  who  are,  or  ought 
to  be,  subordinate  to  them,  is  compatible 
with  professional  duty,  or  the  judicial  in- 
dependence so  indispensable  to  the  admin- 
istration of  justice.  And  an  enormity  of 
the  sort,  practiced  but  on  a  single  judge, 
would  be  an  offense  as  much  against  the 
court,  which  is  bound  to  protect  all  its 
members,  as  if  it  had  been  repeated  on  the 
person  of  each  of  them,  because  the  conse- 
quences to  suitors  and  the  public  would 
be  the  same;  and,  whatever  may  be 
thought  in  sucii  a  case  of  the  power  to 
punish  for  contempt,  there  can  be  no  doubt 
of  the  existence  of  a  power  to  strike  the 
offending  attorney  from  the  roll." 

The  order  of  removal  complained  of  in 
this  case  recites  that  the  plaintiff  threat- 
ened the  presiding  justice  of  the  criminal 
court,  as  he  was  descending  from  the 
bench,  with  personal  chastisement  for  al- 
leged conduct  of  the  judge  during  the  prog- 
ress of  a  criminal  trial  then  pending. 
The  matters  thus  recited  are  stated  as  the 
grounds  for  the  exercise  of  the  power  pos- 
sessed by  the  court  to  strike  the  name  of 
the  plaintiff  from  the  roll  of  attorneys 
practicing  therein.  It  is  not  necessary  for 
us  to  determine  in  this  case  whether,  un- 
der any  circumstances,  the  verity  of  this 
record  can  be  impeached.  It  is  sufficient 
to  observe  that  it  cannot  be  impeached  in 
this  action  or  in  any  civil  action  against 
the  defendant;  and,  if  the  matters  recited 
are  taken  as  true,  there  was  ample  ground 
for  the  action  of  the  court.  A  greater  in- 
dignity could  hardly  be  offered  to  a  judge 
than  to  threaten  him  with  personal  chas- 
tisement for  his  conduct  on  the  trial  of  a 
cause.  A  judge  who  should  pass  over  in 
silence  an  offense  of  such  gravity  would 
soon  find  himself  a  subject  of  pity,  rather 
than  of  respect. 

The  criminal  court  of  the  District  erred 
in  not  citing  the  plaintiff,  before  making 
the  order  striking  his  name  from  the  roll 
of  its  attorneys,  to  show  cause  whj'  such 
order  should  not  be  made  for  the  offensive 
language  and  conduct  stated,  and  afford- 
ing him  opportunity  for  explanation,  or 
defense,  or  apology.  But  this  erroneous 
manner  in  which  its  jurisdiction  was  exer- 
cised. hov.'eA'er  it  may  have  affected  the 
validity  of  tlie  act,  did  not  make  the  act 
an^' less  a  judicial  act;  nor  did  it  render 
the  defendant  liable  to  answer  in  dam- 
ages for  it  at  the  suit  of  the  plaintiff,  as 
though  the  court  had  proceeded  without 
having  any  jurisdiction  whatever  over  its 
attorneys. 

We  find  no  error  in  the  rulings  of  the 
court  below,  and  its  judgment  must  there- 
fore be  affirmed,  and  it  is  so  ordered. 

Judgment  affirmed. 

Davis,  J.,  with  whom  concurred  Clif- 
ford. J.,  (dissenting:)  I  agree  that  judi- 
cial officers  are  exempt  from  responsibility 
in  a  civil  action  for  all  their  judicial  acts 
in  respect  to  matters  of  controversy  with- 
in their  jurisdiction.  I  agree,  further,  that 
judges  of  superior  or  general  authority 
are  equally  exempt  from  liability,  even 
when  they  have  exceeded  their  jurisdic- 
tion, unless  the  acts  complained  of  were 


LIABILITY  OF  PUBLIC  OFFICERS  FOR  OFFICIAL  ACTS. 


211 


done  malirnously  or  corruptly.  But  I  dis- 
sent fr(jm  the  rule  laid  down  by  the  majori- 
ty of  the  court,  thatajudffeisexempt  from 
liability  in  a  case  like  the  present,  where  it 
is  alleged,  not  only  that  his  proceeding 
was  in  excess  of  jurisdiction,  but  that  he 
acted  maliciously  and  corruptly.  If  he 
did  so,  he  is,  in  my  opinion,  subject  to 
suit  the  same  as  a  private  person  would 
be  under  like  circumstances.  I  also  dis- 
sent from  the  opinion  of  the  majority  of 
the  court  for  the  reason  that  it  discusses 
t!ie  merits  of  the  controversy,  which.  In 
the  state  of  the  record,  I  do  not  consider 
open  for  examination. 


(3  Denio,  117.) 
Weaver  v.  Devendorf  et  al. 

(Supreme  Court  of  New  York.    May  Term,  1846.) 

1.  Officers — Liability  fok  Judicial  Acts. 

No  public  officer  is  responsible  in  a  civil  suit 
for  a  judicial  determination,  however  erroneous 
it  may  be,  and  however  malicious  the  motive 
which  produced  it,  if  he  had  jurisdiction  of  the 
particular  case,  and  was  authorized  to  deter- 
mine it. 

2.  Same  —  Assessors  of  Taxes — Liability  for 

Erroxeous  Assessment. 
Assessors  of  taxes  act  judicially  in  fixing  the 
valae  of  taxable  property,  where  it  is  not  sworn 
to  as  authorized  by  law;  and  they  are  not  liable 
to  a  civil  action,  bj'  one  over  whose  person  and 
property  they  had  jurisdiction  for  the  purpose  of 
dssessment,  for  failing  to  make  any  allowance  or 
deduction  on  account  of  an  exemption  of  a  cer 
tain  amount  to  which  he  was  entitled,  or  for  as- 
sessing his  property  at  a  higher  rate  than  that  of 
others. 

Error  to  court  of  common  pleas,  Herki- 
mer county. 

Action  on  the  case  by  Weaver  against 
Devendorf  and  others,  brought  before  a 
justice  of  the  peace.  The  declaration  al- 
leged that  defendants,  being  assessors  of 
the  town  of  Frankfort  for  a  certain  year, 
assessed  plaintiff's  taxable  property  at 
$1,S()().  and  in  so  doing  refused  to  allow 
him  the  benefit  of  the  exemption  to  which 
he  was  entitled  as  a  minister  of  the  gospel; 
that  they  estimated  his  property  at  a 
higher  rate  than  that  of  other  taxable 
inhabitants  of  the  town,  and  refused  to 
make  a  deduction  from  iiis  [)ersonal  prop- 
erty for  debts  owMng  by  him,  though  he 
proved  to  their  satisfaction  that  he  owed 
such  debts;  by  means  of  which  he  was 
taxed  and  obliged  to  pay  a  large  amount, 
etc.  In  some  of  the  counts  defendants' 
conduct  was  charged  to  have  been  willful 
and  corrupt,  and  in  others  careless  and 
negligent.  Defendants  pleaded  the  general 
issue.  On  trial,  the  justice  rendered  judg- 
ment for  plaintiff,  which,  on  certiorari, 
was  reversed  by  the  common  pleas.  To 
review  the  judgment  of  the  common  pleas 
plaintiff  brought  a  writ  of  error. 

G.  B.  Judrl,  for  plaintiff  in  error.  E.  T. 
Marsh,  for  defendants  in  error. 

Beardsi.ey,  J.  Although  the  plaintiff 
may  have  been  a  minister  of  the  gospel, 
still  his  estate,  beyond  .f  1,.500  in  value,  was 
equally  subject  to  taxation  with  that  of 
other  persons.  1  Rev.  St.  pp.  3S7,3SS,  §§  1, 
4,  5.  It  is  not  suggested  that  his  proper- 
ty was  short  of  that  amount,  so  that  he 


was  wholly-  exempt  from  taxation,  and 
upon  the  evidence  that  could  not  be  urged 
with  a  show  of  plausibilitj'.  We  need  not, 
therefore,  inquire  what  the  rule  in  such  a 
case  would  be.  This  plaintiff  appears  to 
have  been  worth  some  five  or  six  thou- 
sand dollars;  his  real  estate  in  the  town 
where  he  resided,  and  in  which  the  ques- 
tion arose,  being  somewhat  more  tiian 
$2,000  in  value.  It  was  therefore  not  a 
case  in  which  the  property  of  the  plaintiff 
was  totally  exempt  from  taxation,  and 
over  which  the  defendants  had  no  jurisdic- 
tion whatever,  but  one  in  which  they 
were  authorized  and  required  by  law  to 
make  an  assessment  of  the  property,  even 
if  the  owner  w^as  a  minister   of  the  gospel. 

The  grounds  of  complaint  on  the  part  of 
the  plaintiff,  as  far  as  I  can  collect  them 
from  the  return,  were  t^-olo\(\— First,  that 
no  allowance  or  deduction  was  made,  in 
assessing  his  property,  on  account  of  hia 
being  a  minister;  and,  seco/Jc//j%  that  his 
property  was  assessed  at  a  higher  rate 
than  that  of  others,  so  that  he  was  there- 
by compelled  to  bear  an  undue  proportion 
of  the  public  burdens.  There  is  no  evi- 
dence in  the  case,  if  the  fact  were  material, 
to  show  that  the  defendants  did  not  allow 
the  exemption  claimed  to  the  extent  of 
.f  1,500;  and  if  the  plaintiff  was  a  minister, 
and  entitled  to  that  deduction,  we  cannot 
presume  against  the  defendants,  who  were 
public  officers,  that  they  violated  their 
duty  in  omitting  to  make  the  proper  al- 
lowance. The  presumption  is  that  public 
officers  do  their  duty,  and  upon  this  re- 
turn it  is  rather  to  be  inferred  that  the  de- 
duction of  $1,500  was  made.  The  plaintiff 
was  assessed  to  the  amount  of  $1,800  for 
real  and  personal  property,  and  w^hich 
ma3'  have  been  the  residue  after  deducting 
$1,500,  a  conclusion  very  well  warranted 
by  the  evidence.  But,  in  vay  view  of  the 
case,  it  is  not  at  all  material  whether  the 
$1,.')00  were  or  were  not  deducted  by  the 
defendants,  or  whether  the  plaintiff's 
property  was  assessed  at  a  higher  rate 
than  that  of  others,  for  in  neither  event 
can  this  action  be  sustained. 

The  defendants  were  assessors  of  Frank- 
fort, where  the  plaintiff  resided,  and  as 
such  had  jurisdiction  over  all  taxable  in- 
habitants of  that  town.  His  real  estate 
in  the  town  exceeded  .§1,500  in  value.  It 
was  therefore  plainly  a  case  in  which  the 
defendants  had  jurisdiction  over  the  prop- 
ertj',  as  well  as  the  person,  of  the  plain- 
tiff; and  it  was  their  imperative  duty  to 
ascertain,  as  far  as  practicable,  the  taxa- 
ble property  of  the  plaintiff,  and  estimate 
its  true  value  according  to  their  best  in- 
formation, belief,  and  judgment.  1  Rev.  St. 
pp.389.3;t0,  tit.  2,  arts.  1,2.  In  some  partic- 
ulars the  duty  of  assessors  is  undoubted- 
ly ministerial ;  but,  in  fixing  the  value  of 
taxable  property,  the  power  exercised  is 
in  its  nature  purely  judicial.  With  the  ex- 
ception of  real  and  personal  estate,  the 
value  of  which  is  sworn  to  as  authorized 
by  law,  (Id.  pp.  392,  398,  §§  15,  16,  22,)  the 
residue  is  to  be  valued,  estimated,  and  de- 
termined by  the  assessors.  Id.  pp.  393, 
394,  §§  17,  20.  This  is  emphatically  a  judi- 
cial act.  The  writ  of  certiorari,  at  com- 
mon law.  lies  only  to  officers  exercising 
judicial   powers,  and    to  remove  jjroceed- 


212 


LATV   OF  TORTS. 


ings  of  that  character.  People  v.  Ma.vor, 
etc.,  2  Hill,  9,  11;  In  re  Mount  Morris 
Square,  etc..  Id.  14,  21,  22.  Yet  all  the  au- 
thorities a.;^ree  that  this  writ  lies  to  re- 
move an  assessnjent,  although,  as  the  al- 
lowance of  the  writ  is  discretionary,  the 
court,  on  grounds  of  public  policy  and  con- 
venience, will  ordinarilj'  refuse  the  writ  in 
cases  of  this  nature.  People  v.  Supervis- 
ors, 15  Wend.  198;  People  v.  Supeiwisors, 
1  Hill,  195;  2  Hill,  supra.  The  act  com- 
plained of  in  this  case  was  therefore  a  ju- 
dicial determination.  The  assessors  were 
judges  acting  clearly  within  the  scope  and 
limit  of  their  authority.  They  were  not 
volunteers,  but  the  duty  was  imperative 
and  comjjulsory ;  and,  acting  as  they  did, 
in  the  performance  of  a  public  duty,  in  its 
nature  judicial,  they  were  not  liable  to 
an  action,  however  erroneous  or  wrong- 
ful their  determination  may  have  been. 
This  case  might  be  disposed  of  on  narrow 
ground,  for  there  was  no  evidence  to  jus- 
tify the  conclusion  that  the  defendants 
acted  maliciously  in  fixing  the  value  of 
the  property  of  the  plaintiff,  or  of  any  one 
else;  and,  surely,  it  will  not  be  pretended 
they  were  liable  for  a  mere  error  of  judg- 
ment. But  I  prefer  to  place  the  decision 
on  the  broad  ground  that  no  public  officer 
is  responsible  in  a  civil  suit,  for  a  judicial 
determination,  however  erroneous  it  may 
be,  and  however  malicious  the  motive 
which  produced  it.  Such  acts,  when  cor- 
rupt, may  be  punished  criminally;  but  the 
law  will  not  allow  malice  and  corruption 
to  be  charged  in  a  civil  suit  against  such 
an  officer  for  what  he  does  in  the  per- 
formance of  a  judicial  duty.  The  rule  ex- 
tends to  judges,  from  the  highest  to  the 
lowest,  to  jurors,  and  to  all  public  officers, 


whatever  name  they  may  bear  in  the  exer- 
cise of  judicial  power.  It  of  course  applies 
onlj^  where  the  judge  or  officer  had  juris- 
diction of  the  particular  case,  and  was  au- 
thorized to  determine  it.  If  he  transcends 
the  limits  of  his  authority,  he  necessarily 
ceases,  in  the  particular  case,  to  act  as  a 
judge,  and  is  responsible  for  all  conse^ 
quences.  But  with  these  limitations  the 
principle  of  irresponsibility,  so  far  as  re- 
spects a  civil  remedy,  is  as  old  as  the  com- 
mon law  itself.  The  authorities  on  this 
subject  are  almost  innumerable.  I  shall 
not  attempt  to  state  any  of  them  in  de- 
tail, but  will  content  myself  by  referring 
generally  to  some  of  the  elementary  works 
and  adjudged  cases,  which  Avill  be  found 
fully  to  sustain  the  principles  I  have  stat- 
ed :  Brown,  Act.  Law,  191-200;  1  Chit.  PI. 
(7th  Amer.  Ed.)  S9,  209,210;  2Saund.  PI.  & 
Ev.  613:  2Starkie,Ev.  (7th  Amer.  Ed.)5S6. 
.5SS,  1111,  1112;  Broom,  Leg.  Max.  40,48; 
Yates  V.  Lansing,  5  .lohns.  282,  affirmed  in 
error,  9  Johns.  396;  Cunningham  v.  Buck- 
lin,  8  Cow.  178;  Eastoii  v.  Calendar,  11 
Wend.  90;  Wilson  v.  Mayor,  etc.,  1  Denio, 
598;  Stowballv.  Ansell,Cumb.ll6;  Garuett 
V.  Ferrand,  6  Barn.  &  C.  (511;  opinion  of 
North,  C.  J.,  in  Barnardiston  v.Soame, in 
the  exchequer  chamber, 6  State  Tr.  10(33.  and 
in  1  East,  568,  note;  opinion  of  Burrough,^ 
J.,  in  Uuke  of  Newcastle  v.  Clark, 8  Taunt. 
602;  Case  of  Floyd  &  Barker,  12  Coke,  23; 
Evans  v.  Foster,  IN.  H.  377;  Dicas  v.  Lord 
Brougham,  6 Car.  &P.249;  Gwinnev.  Pool, 
Lutw,290;  Brittain  v.  Kinnaird,  1  Brod. 
&  B.  432;  Bigelow  v.  Stearns,  19  .Johns. 
39;  Dos  well  v.  Impey,  1  Barn.  &  C.  163. 

The  judgment  of  the  common  pleas 
should  be  affirmed. 

Judgment  affirmed. 


(See,  also,  Langs  v.  Benedict,  73  N.  Y.  12;  Piper  v.  Pearson,  2  Gray,  120;  Clarke  v.  May,  Id. 
410;  Grove  v.  Van  Duvn,  44  N.  J.  Law,  654;  Jones  v.  Brown,  54  Iowa,  74,  6  N.  W.  Rep.  140;  Turpen 
v.  Booth,  56  Cal.  65;  G'as-Light  Co.  v.  Donnelly,  93  N.  Y.  557;  Steele  v.  Dunham,  26  Wis.  393;  Pike' v.. 
Megoun,  44  Mo.  491;  Friend  v.  Hamill,  34  Md.  293.) 


II.  MINISTERIAL  OFFICERS. 


(46  N.  Y.  194.) 

McCarthy  et  nl.  v.  City  of  Syracuse. 

(Court  of  Appeals  of  New  York.    Sept.  15, 1871.) 

1.  Municipal  Corporatioxs — Construction  and 

Repair  of  Seweks. 
When  the  duty  is  imposed  by  law  on  the  mayor 
and  common  soiincil  of  a  city  to  make  and  repair 
sewers  in  the  city,  an  entire  omission  to  con- 
struct a  sewer,  or  a  failure  to  make  it  of  suffi- 
cient size,  creates  no  liability  on  the  part  of  the 
city,  as  the  duty  of  determining  where  sewers 
shall  be  located  and  their  dimensions  is,  in  its 
nature,  judicial;  but  where  a  sewer  has  been  de- 
termined upon,  and  is  constructed,  the  duties  of 
constructing  it  properly,  and  keeping  it  in  good 
condition  and  repair,  are  ministerial,  and  negli- 
gence in  the  performance  of  these  duties  will 
render  the  city  liable  for  damages  resulting 
theretrom. 

2.  Same — Notice  of  Defect. 

The  duty  of  the  city  to  keep  its  sewers  in  re- 
pair involves  the  exercise  of  a  reasonable  degree 
of  watchfulness  in  ascertaining  their  condition 
from  time  to  time,  and  preventing  them  from  be- 
coming dilapidated  or  obstructed  ;  and  omitting 
to  make  the  examination  necessary  to  guard 
against   an   obstructiou    or   dilapidation   of   the 


sewer,  which  is  an  ordinary  result  of  its  use  and 
might  have  been  discovered  on  inspection,  is  a 
neglect  of  duty  which  renders  the  city  liable  for 
damages  thereby  caused,  although  none  of  its 
officials  had  notice  that  the  sewer  was  obstructed 
or  out  of  repair. 

Appeal  from  supreme  court,  general 
term,  fifth  judicial  district. 

Action  by  Dennis  McCarthy  and  others 
against  the  city  of  Syracuse  for  damages 
to  plaintiffs'  goods  in  a  basement  room 
of  their  store  in  said  city.  The  basement 
extended  under  thesidewalksof  thestreets 
on  which  the  store  was  situated,  and  was 
flooded  with  water  from  a  sewer  in  said 
streets,  constructed  bj'  the  city,  and  plain- 
tiffs' goods  were  injured  thereby.  Upon 
trial  be,ore  a  referee,  he  found  in  favor  of 
plaintiffs,  and  judgment  was  entered  on 
his  report,  and  affirmed  by  the  general 
term  on  appeal.  Defendant  appealed  from 
the  judgment  of  the  general  term. 

D.  Pratt,  for  appellant.  George  N.  Ken- 
neOy,  for  respondents. 

Bapallo,  J.     The  principle  appears   to- 


LIABILITY  OF  PUBLIC  OFFICERS  FOR  OFFICIAL  ACTS. 


213 


be  settled  in  this  state  that,  wliere  a  duty  [ 
of  a  ministerial  character  is  imposed  bj' 
law  upon  a  publie  officer  or  corporation, 
a  nesligeut  omission  to  perform  tliatduty 
creates  a  liability  on  riie  part  of  such  offi- 
cer or  corporation  for  the  damages  which 
individuals  may  sustain  by  reason  of 
such  omission,  and  that  such  liability  may 
be  enforced  in  a  civil  action  by  the  party 
injured.  Adsit  v.  Brady,  4  Hill,  630:  Rob- 
inson v.Charauerlain,  34  N.  Y.3S9;  Hutson 
V.  Mayor,  etc.,  9  N.  Y.  169,  Insurance  Co.  ! 
V.  Baldwin,  37  N.  Y.  64S;  Hover  v.  Bark- 
hoof,  44  N.  Y.  113;  Barton  v.  City  of  Syra- 
cuse. 36  N.  Y.  54.  i 

The  charter  of  the  city  of  Syracuse,  I 
which  was  in  evidence  on  the  trial  of  this  i 
action,  contains  provisions  making  it  the 
duty  of  the  mayor  arid  common  council 
to  'make,  open,  regulate,  repair,  and  im- 
prove sewers  in  said  city;  and  it  is  found 
by  the  referee  that,  at  the  time  of  the  in- 
jury, they  employed  a  superintendent  and 
deputies  to  take  care  of  the  streets  and 
sewers,  and  keep  them  in  repair.  It  was 
decided  in  the  case  of  Barton  v.  The  City 
of  Syracuse,  36  N.  Y''.54,  that,  if  the  city  en- 
tered upon  the  performance  of  this  outy, 
negligence  in  its  performance  created  a  lia- 
bility to  the  party  injured,  and  the  city 
was  in  that  case  held  liable  for  damages 
sustained  by  a  party  whose  property  was 
Injured  by  the  overflow  of  a  sewer,  caused 
by  an  accumulation  of  mud  and  filth. 

The  entire  omission  to  construct  a  sew- 
er, or  thp  failure  to  make  it  of  sufiicient 
size,  has  been  held  not  to  create  a  liability- 
on  the  part  of  the  city, for  the  reason  that 
the  dutj'of  determining  where  sewers  shall 
be  located,  and  their  dimensions,  is  in  its 
nature  judicial.  Mills  v.  City  of  Brooklyn. 
32  N.  Y.  4S9.  But  where  a  sewer  has  been 
determined  upon,  and  is  constructed,  all 
the  authorities  agree  that  the  duties  of 
constructing  it  properly,  and  keeping  it  in 
good  condition  and  repair,  are  ministerial; 
and  that  negligence  in  the  performance  of 
those  duties  will  render  the  city  liable  for 
damages resultingtherefroui.  Mills  v.  City 
of  Brooklyn,  32  N.  Y.  489;  Wilson  v.  May- 
or, etc..  1  Denio,  595;  Barton  v.  City  of 
Syracuse,  36  N.  Y.  54. 

The  referee  has  found  as  facts  that  the 
plaintiffs'  premises  were  flooded,  and  their 
goods  damaged,  in  consequence  of  the  in- 
ability of  the  sewer  in  question  to  carry 
off  the  water  which  fell  in  the  street  dnr- 
\n}i:  a  heavy  rain,  and  tliat  this  inability 
of  the  sewer  resulted  from  its  having  be- 
come obstructed  by  the  falling  down  of  a 
portion  of  the  bricks  of  which  tlieinletwas 
constructed,  and  the  accumulation  upon 
such  fallen  bricks  of  mud  and  street  filth, 
almost  entirely  closing  the  inlet;  and  that 
the  defendant  was  guiltj'  of  a  neslect  of 
duty  in  permitting  the  sewer  to  become 
obstructed  and  out  of  repair;  and  that, 
by  reason  of  such  negligence,  the  plain- 
tiffs sustained  the  damages  for  which  the 
judgment  was  rendered.  This  finding  of 
a  neglect  of  duty  on  the  part  of  the  city 
officials  is  essential  to  the  plaintiffs'  case. 
Although  the  duty,  under  a  citj' charter, 
of  keeping  sewers  and  otiier  constructions 
in  repair,  may  in  one  sense  be  regarded  as 
founded  upon  a  contract,  implied  from 
the  acceptance   of  the  benefits  of  the  char- 


ter, to  perform  the  duties  imposed  by  the 
same  instrument,  3'et  the  ol)ligation  has 
not,  in  any  of  the  cases,  been  extended  be- 
yond that  of  exercising  due  diligence.  No 
case  has  gone  so  far  as  to  hold  that  there 
is  an  absvdute  undertaking  or  guaranty, 
on  the  part  of  the  corporation,  that  these 
constructions  shall  at  all  times,  and  under 
all  circumstances,  be  in  proper  condition,  or 
to  hold  the  city  responsible  without  some 
wrongful  act  or  negligent  omission  on  its 
part.  The  appellant  contends  that  the 
uncontroverted  facts  establish  that  in 
this  case  there  was  no  such  negligence, 
and  they  rely  mainly  upon  the  fact  found 
by  the  referee,  that  none  of  the  officials  of 
the  city  had  notice  that  the  sewer  was 
obstructed  or  out  of  repair.  The  mere  ab- 
sence of  this  notice  does  not  necessarily 
absolve  the  city  from  the  charge  of  negli- 
gence. Its  duty  to  keep  its  sewers  in  repair 
is  not  performed  by  waiting  to  be  notified 
by  citizens  that  they  are  out  of  repair,  and 
repairing  them  only  when  the  attention 
of  the  officials  is  called  to  the  damage  they 
have  occasioned  by  having  become  dilap- 
idated or  obstructed;  but  it  involves  the 
exercise  of  a  reasonable  degree  of  watch- 
fulness in  ascertaining  their  condition 
from  time  to  time,  and  presenting  them 
from  becoming  dilapidated  or  obstructed. 
When  the  obstruction  or  dilapidation  is 
an  ordinary  result  of  the  use  of  the  sewer, 
which  ought  to  be  anticipated,  and  could 
be  guarded  against  by  occasional  exami- 
nation and  cleansing,  the  omission  to 
make  such  examinations,  to  keep  the  sew- 
ers clear,  is  a  neglect  of  duty  which  renders 
the  citv  liable.  Barton  v.  Cltv  of  Syra- 
cuse, 37  Barl).  292;  affirmed,  .36  N.  Y.  54. 

But  it  is  further  claimed  in  this  case  by 
the  appellant  that  the  obstruction  was 
caused  by  the  falling  in  of  the  bricks  of 
which  the  inlet  was  built,  and  that  these 
bricks  must  ha  ve  fallen  in  during  the  ex- 
traordinarily heavy  rain  which  resulted  in 
the  damage  in  question,  or  during  a  show- 
er which  occurred  a  few  hours  previously 
and  on  the  same  day.  The  referee  has  not 
found,  nor  does  the  evidence  disclose  with 
certainty,  when  this  falling  in  occurred. 
It  is  argued,  from  the  fact  that  during  the 
first  shower  no  water  cameinto  the  plain- 
tiffs' premises,  that  the  sewer  was  then  in 
good  order.  But  that  is  not  a  necessary 
sequence.  The  sewer  may  have  been  then 
partially  obstructed,  but  still  have  had 
sufficient  capacity  to  carry  off  the  water 
which  fell  at  that  time,  or  enough  of  it  to 
protect  the  plaintiffs' premises.  The  street 
had  been  flooded  in  previous  rains  with- 
out injury  to  the  plaintiffs.  Neither  wa.% 
it  shown'that  this  falling  in  of  the  bricks 
was  not  caused  by  some  negligence  in  the 
construction  of  tiie  sewer.  If  the  appel- 
lants had  shown  that  the  sewer  was  con- 
structed in  a  workmanlike  manner,  and 
that  care  had  been  exercised  to  keep  it  in 
proper  order,  and  that,  notwithstanding 
this  care,  it  had  caved  in,  then  their  want 
of  notice  of  the  injury  in  season  to  repair 
it  would  have  excused  them,  and  this  court 
would  be  justified  in  reversing  the  finding 
of  negligence.  But  nothing  was  shown  as 
to  the  mode  of  construction  of  the  sewer, 
nor  was  it  proved  that  any  examination 
of  it  had  ever  been  made  since  it  was  built. 


214 


LATV   OF  TORTS. 


How  long  it  had  been  falling  into  the  con- 
dition in  which  it  was  finally  found,  or 
from  what  cause  it  became  so  dilapidated, 
are  left  to  conjecture.  The  referee  has 
found  that  the  obstruction  might  have 
been  discovered  on  inspection,  and  that 
the  city  was  negligent  in  permitting  the 
sewer  to  become  obstructed  and  out  of  re- 
pair; and,  although  it  may  be  that  the 
evidence  would  have  justified  a  different 
conclusion,  we  do  not  think  the  case  suffi- 
ciently clear  to  authorize  us  to  reverse  the 
finding  of  the  referee,  on  the  ground  that 
there  is  no  evidence  to  sustain  it. 

The  excavation  by  the  plaintiffs  was  not 
unlawful.  They  owned  to  the  center  of 
the  street,  subject  to  the  right  of  way  of 
the  public  over  the  surface.  For  any  in- 
terference with  this  right  of  way  the  plain- 

(See,  also,  Clark  v.  Miller,  54  N.  Y.  528;  Raynsford  v.  Phelps,  43  Mich.  342,  5  N.  W.  Rep.  403;  In- 
surance Co.  v.  Leland,  90  Mo.  177,  2  S.  W.  Rep.  431 ;  Amy  v.  Supervisors,  11  Wall.  136;  Grider  v.  Tally, 
77  Ala.  422.) 


tiffs  would  have  been  responsible.  But,  so 
long  as  they  did  no  injury  to  the  street, 
they  were  at  liberty  to  use  the  space  under 
it,  as  they  might  any  other  part  of  their 
property.  They  were  not  bound  to  leave 
the  earth  there,  as  a  protection  against 
a  possible  overflow  of  the  sewer.  The 
question  whether  the  damage  was  caused 
by  the  stoppage  of  the  sewer  was  one  of 
fact.  There  was  evidence  from  which  that 
inference  could  be  drawn,  and  we  cannot 
review  the  conclusion  of  the  referee  in  that 
respect.  Thejudgmentshould  beaflSrmed, 
with  costs. 

Church,  C.  J.,  and  Allen  and  Peckham, 
JJ.,  concurred.  Grover  and  Folger,  JJ., 
dissented.     Andrews,  J.,  did  not  vote. 

Judgment  affirmed. 


(110  Mass.  474.) 

Keenan  v.  Southworth. 

(Supreme  Judicial  Court  of  Massachusetts. 
Oct.  Term,  1872.) 

Postmaster — Negligence  of  Clerk. 

A  postmaster  is  not  liable  for  the  loss  of  a  let- 
ter occasioned  by  the  negligence  or  wrongful 
conduct  of  his  clerk,  appointed  and  sworn  as 
required  by  law,  although  selected  by  him  and 
subject  to  his  orders. 

Case  reserved  from  superior  court. 

Action  of  tort  by  James  H.  Keenan 
against  John  T.  Southworth,  postmaster 
of  East  Randolph,  for  damages  for  the 
loss  of  a  letter  addressed  to  jjlaintiff.  At 
the  trial  evidence  was  given  for  plaintiff 
tending  to  show  that  the  letter  was  re- 
ceived at  the  post-office  at  East  Randolph, 
and  was  lost  by  the  negligence  or  wrong- 
ful conduct  of  one  Bird,  who  was  the  post- 
master's clerk.  Plaintiff  disclaimed  "any 
actual  participancy  or  knowledge  of  the 
acts  of  Bird  on  the  part  of  thedefeudant. " 
The  judge  ruled  that  defendant  was  not 
liable  for  any  careless,  negligent,  or 
wrongful  acts  of  Bird;  and,  by  consent 
of  plaintiff,  he  directed  a  verdict  for  de- 
fendant, and  reported  the  case  for  the  con- 


sideration of  the  court;  if  the  ruling  was 
wrong,  tJie  verdict  to  be  set  aside,  and 
the  case  to  stand  for  trial;  otherwise, 
judgment  for  defendant  on  the  verdict. 

S.  R.  Townsend,  for  plaintiff.  B.  W. 
Harris  and  P.  E.  Tucker,  for  defendant. 

Gray,  J.  The  law  is  well  settled  in  Eng- 
land and  America  that  the  postmaster 
general,  the  deputy-postmasters,  and  their 
assistants  and  clerks,  appointed  and 
sworn  as  required  by  law,  are  public  offi- 
cers, each  of  whom  is  responsible  for  his 
own  negligence  only,  and  not  for  that  of 
any  of  the  others,  although  selected  by 
him,  and  subject  to  his  orders.  Lane  v. 
Cotton,  1  Ld.  Raym.  640,  12  Mod.  472; 
Whitfield  v.  Le  De  Spencer,  Cowp.  754; 
Dunlop  V.  Munroe,  7  Cranch,  242,  Schroy- 
er  V.  Lynch,  8  Watts,  4.53;  Bishop  v.  Will- 
iamson, 11  Me.  495;  Hutchins  v.  Brack- 
ett,  2  Fost.  (N.  H.)  2.52.  The  ruling  at  the 
trial  was  therefore  right,  and  the  plain- 
tiff, having  consented  to  a  verdict  for  the 
defendant,  reserving  only  the  correctness 
of  the  ruling,  cannot  now  raise  the  ques- 
tion whether  there  was  sufficient  evidence 
of  the  defendant's  own  negligence  to  be 
submitted  to  the  jury. 

Judgment  on  the  verdict. 


(See,  also,  Teall  v.  Felton,  1  N.  Y.  537;  Wiggins  v.  Hathaway,  6  Barb.  632;  Tracy  v.  Cloyd,  10  W. 
Va.  19.) 


(30  Cal.  190.) 
BouLWARE  V.  Craddock,  ('onstable,  et  al. 

{Supreme  Court  of  California.   July  Term,  1866. ) 

Sheriffs  and  Constables — Wrongful  Seizure 
OF  Property  under  Execution. 
A  sheriff  or  constable  who,  under  an  execu- 
tion, seizes  and  sells  property  not  belonging  to 
the  execution  debtor,  although  in  his  possession, 
is  a  mere  trespasser,  and  liable  to  an  action  by 
the  owner  of  the  property  without  any  demand 
before  suit. 

Appeal  from  district  court,  tenth  judi- 
cial district,  Sutter  county. 

Action  by  W.  Boulware  against  C.  C. 
Craddock,  a  constable,  and  James  O.  Har- 
ris and  Samuel  H.  Pip()in,  his  bondsmen, 
to  recover  the  value  of  two  horses  alleged 


to  have  been  wrongfully  seized  and  sold 
by  Craddock  as  such  constable.  At  the 
trial  it  appeared  that  plaintiff  was  the 
owner  of  the  horses,  and  that  they  had 
strayed  away  from  his  premises,  and  that 
afterwards  one  Eaton  had  taken  them  in- 
to his  possession;  that  defendant  Crad- 
dock, as  constable,  having  received  an  exe- 
cution against  Eaton,  finding  the  horses 
in  Eaton's  possession,  and  supposing  they 
were  his  property, seized  and  sold  thein  as 
Eaton's  property;  that  plaintiff  was  not 
informed  of  the  seizure  and  sale  of  his 
horses  until  15  days  after  the  sale,  when 
he  informed  Craddock  that  he  owned  the 
liorses,  and  asked  him  where  they  were, 
and  Craddock  told  hirn  who  the  purchaser 
was  and  where  he  lived.     Plaiiitiff  did  not 


LIABILITY  OF  PUBLIC  OFFICERS  FOR  OFFICIAL  ACTS. 


215 


make  any  cleiiuiud  on  Craddock  for  the 
horses  ortheir  value  before  bringing  suit. 
The  court  below  held  that  a  demand  was 
necessary  to  entitle  plaintiff  to  recover, 
and  gave  judRuient  for  defendants.  Plain- 
tiff appealed. 

L.  J.  Asbford,  for  appellant.  J.  Hart, 
for  respondents. 

Shafter,  J.  In  an  action  aj^ainst  a 
sheriff  for  a  seizure  and  conversion  of  the 
plaintiff's  property,  taken  under  process 
against  a  third  person,  a  demand  upon 
the  defendant  prior  to  the  bringing  of  the 
suit  is  not  necessary  to  a  recovery.  The 
sheriff,  having  misapplied  his  process,  (and 
whether  by  mistake  or  design  will  make 
no  difference,)  stands  in  the  position  of  ev- 
ery other  trespasser,  and  is  liable  to  an 
action  the  instant  the  trespass  is  commit-  ' 

(See,  also,  iState  v.  Koontz,  83  Mo.  323 ;  Buck  v. 
1  Pac.  Rep.  895;  Symonds  v.  Hall,  87  Me.  354.) 


ted.  The  circumstance  that  the  property 
was  in  the  possession  of  the  execution 
debtor  at  the  date  of  the  seizure  amounts 
to  nothing  except  upon  proof  ol  fraud  or 
commixture.  The  rule  of  the  common 
law  is  correctly  stated  in  Ledley  v.  Hays, 
1  Cal.  IGO,  and  the  correctness  of  that  de- 
cision is  impliedly  recognized  in  Daumiel 
v.  Gorham,  6  Cal.  44.  The  statement  of 
facts  in  Taylor  v.  Seymour,  0  Cal.  512,  is 
imperfect;  but,  if  that  case  is  to  be  un- 
derstood as  laying  down  a  different  rule, 
then  we  prefer  to  follow  Ledley  v.  Ha3's. 
See,  also,  Codman  v.  Freeman,  8  Cush. 
314,  and  Acker  v.  Campbell,  23  Wend.  372. 
The  judgment  is  reversed,  and  the  court 
below  is  directed  to  render  judgment  up- 
on the  findings  in  favor  of  the  plaintiff. 

Rhodes,  J.,  expressed  no  opinion. 
Colbath,  3  Wall.  334;  Rankin  v.  Ekel,  64  Cal.  446, 


(34  Minn.  92,  24  N.  "W.  Rep.  327.) 

Welsh  v.  Wilson. 

(Supreme  Court  of  Minnesota.    July  24, 1885.) 

1.  Sheriffs  axd  Coxstables  —  Levy  of  Execu- 

tion"—  Bkeakixg  Outer  Door  of  Dwelling. 
Plaintiff  occupied  as  her  dwelling,  a  building 
containing  only  one  room,  and  also  carried  on 
there  her  trade  as  a  milliner,  and  kept  and  ex- 
posed for  sale  a  stock  of  goods.  Held,  that  the 
fact  that  she  so  used  it  to  transact  her  business 
did  not  change  its  character  as  her  dwelling,  and 
that  the  sheriff,  having  an  execution  against  her, 
was  not  authorized  to  break  the  outer  door  for 
the  purpose  of  levying  upon  her  goods,  and  such 
levy  was  invalid.     Mitchell,  J.,  dissenting. 

2.  Same— Mitigation  of  Damages. 

Ill  an  action  for  such  wrongful  levy,  it  could 
not  avail  the  sheriff,  in  mitigation  of  damages, 
that  he  sold  the  goods  and  paid  the  proceeds  to 
the  execution  creditor ;  the  levy  itself  being  in- 
valid, every  subsequent  act  based  on  it  was  but 
a  continaation  and  aggravation  of  the  original 
trespass. 

Appeal  from  district  court,  Waseca  coun- 
ty. 

Action  by  Kate  G.  Welsh  against  Hugh 
Wilson,  sheriff  of  Waseca  county,  for  an  al- 
leged wrongful  levy  of  an  execution  on 
plaintiff's  goods.  From  a  judgment  for 
plaintiff,  rendered  upon  a  trial  by  jury,  de- 
fendant appealed. 

Lewis  ct'  Leslie,  for  appellant.  CoUestev 
Bros.,  for  respondent. 

GiLFiLLAX,  C.  J.  Plaintiff  occupied  in 
Waseca  a  building  one-story  high,  of  onlj- 
one  room.     In   this  she  witl>  her  daughter 


the  morning  to  the  building,  the  door  of 
which  was  then  locked,  put  his  hand 
through  the  window,  a  pane  of  which 
was  Droken,  took  the  lock  off  the  door, 
entered,  and  levied  on  and  removed  her 
goods.  The  validity  of  the  levy  is  only 
in  question. 

The  room  must  be  taken  to  have  been 
the  plaintiff's  dwelling,— her  abode, — not 
merely  when  closed  to  business,  but  at  all 
times  when  she  occupied  it  for  her  dwell- 
ing. The  fact  that  she  also  u^ied  it  to 
transact  her  business  did  not  change  its 
character  in  that  respect.  It  being  her 
dwelling,  it  was  unlawful  for  the  sheriff 
to  break  the  outer  door  to  effect  an  en- 
trance tor  the  purpose  of  serving  civil  pro- 
cess. This  proposition  has  never  been 
doubted,  either  in  England  or  in  this 
country.  It  is  also  well  settled  in  this 
country — there  being  no  authority  to  the 
contrary — that  no  valid  levy  can  be  made 
bj'  means  of  such  unlawful  entrj'.  We 
may  perhaps  regret  that  such  is  the  rule, 
— may  be  able  to  see  that  unfortunate 
consequences  will  sometimes  result  from 
it, — but  it  is  too  firinly  established  to  be 
disturbed,  except  by  act  of  the  legisla- 
ture. The  levy  being  invalid,  nothing 
which  the  sheriit  did  pursuant  to  it  was 
valid.  Everj'  subsequent  act  based  on 
the  levy,  and  depending  on  it  for  its  law- 
fulness, was  but  a  continuation  and  ag- 
gravation of  the  original  trespass.  It 
can  therefore  be  of  no  avail  to  the  sheriff 
that  he  sold  the  goods,  and  paid  the   pro- 


slept,  and'did  upon  a  kerosene  stove  what  !  ceefls   to  the  execution   creditor.     In   the 

-  '  cases  where,  as  in  Howard  v.  Manderfield, 
31  Minn.  837,  17  N.  W.  Rep.  94G,  such  sub.se- 
quent  appropriation  has  been  allowed  to 
operate  in  mitigation  '^f  damages,  there 
has  been  a  subsequent  valid  levy,  not  con- 
nected with  the  trespass,  which  gave  va- 
lidity to  the  sale  and  appropriation  of  the 
proceeds. 
Judgment  afl5rmed. 


cooking  she  did,  but  usually  got  their 
meals  at  a  restaurant.  In  it  she  also  pur- 
sued her  trade  as  a  milliner,  and  kept  in  it 
for  sale,  and  exposed  for  sale,  a  stock  of 
millinery  goods.  It  was  fitted  up  like  a 
store,  with  shelves,  tables  for  counters, 
show-cases  on  the  tables,  and  one  in 
front,  on  and  in  whicli  her  goods  were 
kept  for  sale.  The  defendant,  sheriff  of 
the  county,  having  an  execution  against 
her  property,    went   about  10  o'clock   in 


Mitchell,  J.,  dissenting. 


(See,  also.  Semayne's  Case,  5  Coke,  Qhi:  Clark  v.  Wilson,  14  R.  I.  11;  Hagperty  v.  Wilber,  16 
Johns.  2>'r:  Williams  v.  Spencer,  5  Johns.  352;  Curtis  v.  Hubbard,  4  Hill,  437;  bulinsky  v.  Bank,  85 
Tenn.  368,  4  S.  W.  Rep.  83ti.) 


216 


LAW  OF  TORTS. 


(5  Hill,  440.) 

People  v.AVakrex. 

(Supreme  CouH  of  New  York.    July  Term,  1843.) 

Sheriffs  and  Constables— Akkest  undek  Wak- 
KANT  Regular  ox  its  Face. 
A  warrant  regular  on  its  face  is  a  sufficient 
autliority  to  a  constable  to  make  the  arrest  com- 
manded therein,  although  he  has  knowledge  of 
facts  which  render  the  warrant  void  for  want  of 
jurisdiction. 

Certiorari  to  court  of  general  sessions, 
Onpicla  county. 

Indictnieiit  against  defendant  for  as- 
sault and  battery  upon  one  Johnson,  a 
constable,  in  resisting  arrest  by  Johnson 
on  a  warrant,  issued  by  the  inspectors  of 
election  of  the  city  of  Utica  against  defend- 
ant for  interrupting  the  proceedings  at 
an  election  by  disorderly  conduct  in  the 
presence  of  the  inspectors.  1  Rev.  St.  N. 
Y.  p.  137,  §  37.  The  warrant  was  regular 
and  sufficient  upon  its  face.  Defendant 
offered  to  prove  that  he  had  not  been  in 
the  hearing  or  presence  of  the  inspectors 
at  any  time  during  the  election,  and  that 
Johnson  knew  it.  The  court  excluded  the 
evidence,   and   defendant   was    convicted, 


and  moved  for  a  new  trial  on  a  bill  of  ex- 
ceptions. 

W.  Hunt,  for  defendant. 

The  evidence  should  have  been  admit- 
ted. It  would  have  shown  that  the  in- 
spectors had  no  jurisdiction  of  the  subject- 
matter,  and,  if  the  officer  knew  it,  his 
process  was  no  justification  of  the  arrest. 
Parker  v.  Walrod,  16  Wend.  514. 

Per  Curiam.  Although  the  inspectors 
had  no  jurisdiction  of  the  subject-matter, 
yet,  as  the  warrant  was  regular  upon  its 
face,  it  was  a  sufficient  authority  for  John- 
son to  make  the  arrest,  and  the  defendant 
had  no  right  to  resist  the  officer.  The 
know^ledge  of  the  officer  that  tiie  inspect- 
ors had  no  jurisdiction  is  not  important. 
He  must  be  governed  and  is  protected  by 
the  process,  and  cannot  be  affected  by 
anything  which  he  has  heard  or  learned 
out  of  it.  There  are  some  dicta  the  other 
way;  but  we  have  held  on  several  occa- 
sions that  the  officer  is  protected  by 
process  regular  and  legal  upon  its  face, 
whatever  he  may  have  heard  going  to  im- 
peach it.  Webber  v.  Gay,  24  Wend.  485; 
Watson  v.  Watson,  9  Conn.  140. 

New  trial  denied. 


(See.  also,  Savacool  v.  Boughton,  5  Wend.  170;  Woolsey  v.  Morris,  96  N.  Y.  311;  Barr  v.  Boyles, 
96  Pa.  St.  31 ;  Fisher  v.  McGirr,  1  Gray,  45;  Mangold  v.  Thorpe,  33  N.  J.  Law,  134;  Underwood  v.  Rob- 
inson, 106  Mass.  296;  Thurston  v.  Adams,  41  Me.  419.) 


CRIMINAL  CONVERSATION  AND  SEDUCTION. 


(134  Mass.  123.) 
BiGAOUETTE    V.  PaULET. 

(Supreme  Judicial  CouH  of  Massachusetts. 
Suffolk.     Jan.  3,  1883.) 

Criminal  Conversation  —  Grounds  of  Action 
BY  Husband. 
An  action  may  be  maintained  by  a  husband 
for  the  loss  of  consortium  with  his  wife  which 
is  implied  from  criminal  conversation  of  the  de- 
fendant with  her,  whether  defendant's  act  was 
with  or  against  her  will,  and  although  it  may 
have  caused  no  actual  loss  of  her  services  to  her 
husband. 

Exceptions  from  superior  court. 

Action  of  tort  by  Noel  Bigaouette 
against  Henry  Paulet  in  four  counts. 
The  first  count  was  for  seduction  of  plain- 
tiff's wife;  the  second  and  fourth  were  for 
assaults  upon  her,  and  the  third  was  for 
a  rape;  whereby  plaintiff  lost  her  com- 
fort, assistance,  societ3%  and  benefit.  A 
bill  of  exceptions,  allowed  by  the  trial 
judge,  was,  in  substance,  as  follows: 
The  only  witnesses  were  plaintiff  and  his 
wife.  The  wife  testified  that  plaintiff  was 
a  workman  in  the  factory  of  the  Smith 
American  Organ  Companj',  in  a  subordi- 
nate capacity,  under  defendant,  and  that 
they  were  in  the  habit  of  visiting  each 
other  occasionally  with  their  wives;  that 
on  some  occasions,  previously  to  July  n, 
lS7fi,  defendant  told  plaintiff's  wife  that 
he  would  turn  her  husband  away  from  the 
factory,  if  she   refused    to   receive   defend- 


ant's visits;  that  on  July  5,  1876,  defend- 
ant violently  and  forcibly  ravished  her, 
and  that  he  also  immediately  showed  her 
a  pistol,  and  threatened  to  shoot  her  if 
she  should  ever  tell  her  husband;  that 
she  was  at  that  time  four  mouths  preg- 
nant with  child;  that  her  child  was  born 
on  December  11,  1S76;  that  on  December 
16,  1876,  she  first  told  her  husband  of 
what  had  occurred  between  her  and  de- 
fendant, and  three  days  afterwards  plain- 
tiff was  discharged  from  the  factory  by 
defendant;  that  shortly  after  July  5,  1876, 
plaintiff  saw  black  and  blue  marks  on  his 
wife's  arms  and  legs,  and  observed  that 
she  was  ill ;  that  she  had  no  physician, 
and  they  kept  no  servant  to  assist  her, 
and  that  she  attended  to  and  performed 
her  ordinary  domestic  duties  in  her  hus- 
band's family  up  to  the  time  of  her  con- 
finement, but  that  her  performance  of 
these  duties  was  attended  with  pain  and 
difficulty  to  herself.  The  plaintiff  also 
testified  to  some  of  the  above  facts,  and 
then  rested  his  case.  The  defendant  con- 
tended, the  foregoing  being  all  the  materi- 
al testimony  in  the  case,  that  there  was 
not  sufficient  evidence  of  loss  of  the  wife's 
services  to  enable  the  plaintiff  to  main- 
tain this  action.  The  judge  ruled  that  as 
there  was  no  evidence  to  support  the 
count  charging  defendant  with  seducing 
plaintiff's  wife,  and  as  the  evidence  appli- 
cable to  the  counts  for  assault  and  rape 
proved   that  no  loss  of  service  was  caused 


CRIMINAL  CONVERSATION  AND  SEDUCTION. 


217 


to  plaintiff,  the  action  conkl  not  be  main- 
tained, and  directed  a  verdict  for  defend- 
ant.    Plaintiff  allejicd  excej^tioiis. 

.4.  Buss  and  H.  I'..  Sur^ent,  Jr.,  for 
plaintiff.     W.  P.  Hardiug,  for  defendant. 

W.  Allex,J.  The  plaintiff  cannot  main- 
tain this  action  for  an  injury  to  the  wife 
only.  He  must  prove  that  some  right  of 
his  own  in  the  person  orc<Muluct  of  his 
wife  has  been  violated.  A  husband  is  not 
the  master  of  his  wife,  and  can  maintain 
no  action  for  the  loss  of  her  services  as  his 
servant.  His  interest  is  expressed  by  the 
word  "eo7isort//77«," — the  right  to  the  con- 
jugal fellowship. of  the  wife,  to  her  compa- 
ny, co-operation,  and  aid  in  every  conju- 
gal relation.  Some  acts  of  a  stranger  to  a 
wife  are  of  themselves  invasions  of  a  hus- 
band's right,  and  necessarily  injurious  to 
him  ;  others  may  or  may  not  injure  him, 
according  to  their  consequences;  and,  in 
such  cases,  the  injurious  consequences 
must  be  proved,  and  it  must  be  shown 
that  the  husband  actually  lost  the  com- 
pany and  assistance  of  his  wife.  This  is 
illustrated  in  the  statements  of  injuries  to 
a  husband  in  3  Bl.  Comm.  139,  140,  where 
such  injuries  are  said  to  be  principally 
three:  "Abduction,  or  taking  away  a 
man's  wife:  adultery,  or  criminal  conver- 
sation with  her;  and  beating  or  other- 
wise abusing  her."  The  first  two  are  of 
themselves  wrongs  to  the  husband,  and 
his  remedy  is  by  action  of  tresjiass  vi  et 
arinis.  In  regard  to  rhe  other,  the  au- 
thor's words  are:  "If  it  be  a  comnitm  as- 
sault, battery,  or  imprisonment,  the  law 
gives  the  usual  remedy  to  recover  dam- 
ages, by  action  of  trespass  vi  et  ^irnn's, 
which  must  bebrought  in  thenamesof  tlie 
husband  and  wife  jointly;  but  if  the  beat- 
ing or  other  maltreatment  be  ver^^  enor- 
mous, so  that  thereby  the  husband  is  de- 
prived for  any  time  of  the  company  and 
assistance  of  the  wife,  the  law  then  gives 
him  a  separate  remedy  by  an  action  of 
trespass,  in  nature  of  an  action  upon  the 
•case,  for  this  ill  usage,  per  quod  consor- 
tium ninisit,  in  which  he  shall  recover  a 
satisfaction  in  damages."  He  states,  as 
one  of  the  circumstances  affecting  the 
damages  in  an  action  for  adultery,  "  the 
seduction  or  otherwise  of  the  wife,  found- 
ed on  her  previous  behavior  and  charac- 
ter. " 

It  is  usual  in  actions  for  criminal  con- 
versation to  allege  the  seduction  of  the 
wife,  and  the  consequent  alienation  of 
her  affections,  and  loss  of  her  company 
and  assistance,  and  sometimes  of  her  serv- 
ices: but  these  are  matter  of  aggravation, 
except  so  far  as  they  are  the  statement 
of  a  legal  inference  from  the  fact  it- 
self, and  actual  proof  of  them  is  not  nec- 
essary to  the  husband's  right  of  actiem. 
The  loss  of   the  consortium  is  presumed, 


although  the  wife  may  have  herself  been 
the  seducer,  or  may  not  have  been  living 
with  the  husband.  A  husband  who  is  liv- 
ing apart  from  his  wile,  if  he  has  not  re- 
nounced his  marital  rights,  can  maintain 
the  action  :  and  it  is  not  necessary  for  him 
to  prove  alienation  of  the  wife's  affectitjn, 
or  actual  loss  of  her  society  and  assist- 
ance. See  Chaml)ers  v.  CauUield,  (5  East, 
i'44;  Wilton  v.  Webster,  7  Car,  &  P.  11)8; 
Yundt  V.  Hartrunft,  41  111.  9.  The  essen- 
tial injury  to  the  husband  consists  in  the 
defilement  of  the  marriage  bed, — in  the  in- 
vasion of  his  exclusive  right  to  marital  in- 
tercourse with  his  wife,  and  to  beget  his 
own  children.  This  presumes  the  loss  of 
the  consortium  with  his  wife,  of  comfort 
in  her  society  in  that  respect  in  which  his 
right  is  peculiar  and  exclusive.  Althijugh 
actions  of  this  nature  have  generally  been 
brought  where  the  alienation  of  the  wife's 
affections,  and  actual  deprivation  of  her 
society  and  assistance,  have  been  the 
prominent  injury  to  the  husband,  yet  it  is 
plain  that  the  seduction  of  the  wife, induc- 
ing her  to  violate  her  conjugal  duties,  and 
injuries  arising  from  that,  are  not  the 
foundation  of  the  action.  The  original 
and  approved  form  of  action  is  trespass  vi 
et  armis,  and,  though  this  form  was 
adopted  when  the  act  was  with  the  con- 
sent of  the  wife,  it  was  for  the  reason,  as 
given  by  Chief  Justice  Holt,  'that  the 
law  indulges  the  husband  with  an  action 
of  assault  and  battery  for  the  injury  done 
to  him,  though  it  be  with  the  consent  of 
his  wife,  because  the  law  will  not  allow 
her  consent  in  such  case  to  the  prejudice 
of  her  husband,  because  of  the  interest  he 
has  in  her."  Rigaut  v.  Gallisard,  7  Mod. 
78,2  Ld.  Raym.809,  Holt,  50.  See.  also, 
Bac.  \br.  "Trespass,"  C  1;  and  Id.  "Mar- 
riage," F  2;  2  Chit.  PI.  (13th  Amer.  Ed.) 
855;  Reeve,  Dom.  Rel.  63.  The  fact  that 
trespass,  and  not  case,  was  the  form  of 
action,  even  when  the  wrong  was  accom- 
plished by  the  seduction  of  the  wife,  for 
the  reason  that  the  wife  was  deemed  in- 
capable of  consent,  and  "force  and  vio- 
lence were  supposed  in  law  to  accompany 
this  atrocious  injury,"  indicates  that  the 
cause  of  action  arose  from  acts  commit- 
ted upon  the  person  of  the  wife,  and  not 
from  influences  exerted  upon  her  mind; 
that  the  corrupting  of  the  body,  rather 
than  the  mind,  of  the  wife  was  the  origi- 
nal and  essential  wrong  to  the  husband. 

We  think  that  this  action  may  be  main- 
tained upon  the  evidence  offered,  not  for 
the  actual  loss  of  comfort,  assistance,  so- 
cietj',  and  benefit  alleged  in  the  second 
and  fourth  counts  as  consequences  of  the 
assaults  set  forth  in  them,  hut  for  the  loss 
of  the  consortium  with  the  wife  which  is 
implied  from  criminal  conversation  with 
her,  whether  with  or  against  her  will. 

Exceptions  sustained. 

(See,  also,  Jacobsen  v.  Siddal,  12  Or.  2S0,  7  Pac.  Rep.  108;  Wales  v.  Miner,  89  Ind.  118;  Johnston 
V.  Disbrow,  47  Mich.  59,  10  N.  W.  Rep.  79 ;  Heermance  v.  James,  47  Barb.  120.) 


218 


LAW  OF  TORTS. 


(11  N.  Y.  343.) 

MULVEHAI.L   V.  MiLLWARD. 

(Court  of  Appeals  of  New  Yorh.     Sept.  Term, 
1S54. ) 

Seduction — Grodxds  of  Action  by  Parent. 

Plaintiff's  minor  daughter,  who  had  left  his 
house  to  work  for  defendant,  was  seduced  by 
the  latter  while  in  his  employ,  and  became  preg- 
nant. She  thereafter  worked  at  other  places,  but 
did  not  return  to  her  father's  house,  nor  did  it 
appear  that  she  had  any  intention  to  return  there, 
until  after  her  continement  and  the  birth  of  her 
child ;  and  it  was  not  shown  that  her  father  took 
any  care  of  her  or  expended  any  money  on  Her 
account  during  her  pregnancy  or  sickness.  Held 
that,  as  he  had  not  surrendered  his  legal  right  to 
her  services,  he  could  maintain  an  action  for  her 
seduction. 

Appeal  from  superior  court  of  New  York 
city,  general  term. 

Action  for  the  seduction  of  plaintiff's 
daugliter  by  defendant.  At  the  trial,  in 
March,  18.52.  the  daughter  testified  that 
she  was  then  residing  with  her  father,  the 
plaintiff,  and  that  she  had  attained  the 
age  of  21  years  in  January,  1852;  that  in 
November,  1850,  she  had  left  her  father, 
and  had  gone  to  work  for  defendant;  that 
a  few  weeks  afterwards,  while  in  the  em- 
ploy of  defendant,  she  was  seduced  by 
him.  and  became  pregnant;  that  subse- 
quentb',  and  before  the  birth  of  her  child, 
she  worked  for  others;  and  that  she  was 
delivered  of  the  child  at  another  place. 
There  was  no  evidence  that  Phe  returned 
to  her  father's  from  the  time  she  went  to 
work  for  the  defendant  until  after  her  re- 
coveiy  from  her  sickness  at  her  confine- 
ment, or  that  her  father  took  any  care  of 
her,  or  expendea  any  money  on  her  ac- 
count, during  her  pregnancy  or  sickness. 
When  plaintiff  rested,  defendant  moved 
for  a  nonsuit,  on  the  ground  "that  no  ex- 
pense or  actual  loss  of  service  to  the  plain- 
tiff had  been  proved."  The  motion  was 
denied,  and  defendant  excepted.  Evidence 
was  then  given  for  defendant,  and  the 
cause  submitted  to  the  jury,  which  found 
a  verdict  for  plaintiff  for  $M,OuO.  Judg- 
ment for  plaintiff  was  entered  on  the  ver- 
dict, and  was  affirmed  on  appeal  to  the 
general  term  of  the  superior  court.  From 
the  judgment  of  the  general  term  defend- 
ant again  appealed. 

J.  Van  Burea,  for  appellant.  A.  L.  Pin- 
ney,  for  respondent. 

Edwards,  J.  It  was  proved  upon  the 
trial  that  the  plaintiff's  daughter,  at  the 
time  of  her  seduction,  was  in  the  defend- 
ant's service,  and  it  did  not  appear  that 
there  was  animus  revertendi,  or  that  she, 
in  fact,  returned  to  her  father's  house  un- 
til after  her  confinement.  Upon  this  state 
of  facts  it  was  contended  upon  the  part  of 
the  defendant  that,  as  no  expense  or  act- 
ual loss  of  service  on  the  part  of  the  j^laintiff 
was  proved,  he  should  be  nonsuited,  and 
a  motion  was  made  to  that  effect,  which 
was  overruled.  In  the  case  of  Dean  v. 
Peel,  5  East,  45,  the  plaintiff's  daughter  at 
the  time  of  her  seduction  was  under  age, 
but  was  living  in  the  family  of  another 
person,  in  the  capacity  of  a  housekeeper, 
with  no  intention  at  the  time  of  her  se- 
duction of  returning  to  her  father's  house, 


although  she  did  return  there  while  sh& 
was  under  age,  in  consequence  of  her  se- 
duction, and  was  maintained  by  her  fa- 
ther. Upon  this  state  of  facts  it  was  held 
that,  as  the  daughter  was  actually  in  tlie 
service  of  another  person  than  her  father, 
and  as  there  was  no  animus  revertendi, 
the  action  could  not  be  maintained.  The 
rule  thus  laid  down  has  been  since  fol- 
lowed in  the  English  courts.  Blaymire  v. 
Haley,  6  Mees.  &  W.  55;  Harris  v.  Butler, 
2  Mees.  &  W.  539;  Grinnell  v.  Wells,  7  Man. 
&  G.  1033.  In  a  few  years  after  the  decis- 
ion in  Dean  v.  Peel,  a  somewhat  similar 
case  arose  in  this  state,  in  which  it  ap- 
peared that  the  plaintiff's  daughter,  who 
was  under  age,  went,  with  the  consent  of 
her  father,  to  live  with  her  uncle,  for 
whom  she  worked  when  she  pleased,  and 
he  agreed  to  pay  her  for  her  work;  but 
there  was  no  agreement  that  she  should 
continue  to  live  in  his  house  for  any  fixed 
time.  While  in  her  uncle's  house  she  was 
seduced,  and  got  with  child.  Immediate- 
ly afterwards  she  retui'ned  to  her  father's 
house,  where  she  was  maintained,  and  the 
expense  of  her  lying-in  was  paid  by  him. 
Upon  this  state  of  facts  it  was  held,  con- 
trary to  the  case  above  cited,  that  the  ac- 
tion' could  be  maintained.  In  delivering 
the  opinion  of  the  court,  Spencer,  C.  J., 
said :  "The  case  of  Dean  v.  Peel  is  against 
the  action.  In  the  present  case  the  father 
had  made  no  contract  binding  out  his 
daughter,  and  the  relation  of  master  and 
servant  did  exist  from  the  legal  control  he 
had  over  her  services;  and,  although  she 
had  no  intention  of  returning,  that  did  not 
terminate  the  relation,  because  her  voli- 
tion could  not  affect  his  rights.  She  was 
his  servant  de  jure,  though  not  de  facto, 
at  the  time  of  the  injury;  and,  being  his 
servant  de  Jure,  the  defendant  has  done 
an  act  which  has  deprived  the  father  of 
the  daughter's  services,  and  which  he 
might  have  exacted  but  for  that  injury." 
Martin  v.  Payne,  9  Johns.  387.  This  de- 
cision was  afterwards  approved  of  in  Nick- 
leson  V.  Stryker,  10  Johns.  115.  In  the 
case  of  Clark  v.  Fitch,  2  Wend.  4.59,  it  was 
proved  upon  the  trial  that  the  plaintiff 
told  his  daughter  that  she  might  remain 
at  home  or  go  out  to  service  as  she  pleased, 
but,  if  she  left  his  house,  she  must  take 
care  of  herself,  and  he  relinquished  all 
claim  to  her  wages  and  services.  It  was 
contended  that  there  was  a  distinction 
between  this  case  and  that  of  Martin  v. 
Payne,  on  the  ground,  (1)  that  the  father 
had  given  his  daughter  her  time  absolute- 
ly; (2)  that  he  had  in  fact  incurred  no  ex- 
pense; but  it  was  held  that  this  made 
no  difference,  and  that  the  personal  rights 
of  the  father  over  the  child  were  not  relin- 
quished. In  the  recent  case  of  Rartley  v. 
Richtmyer,  4  N.  Y.  38.  Bronson,  C.  J.,  in 
giving  the  opinion  of  the  court,  sa3's  that 
"our  cases  hold  that  the  relation  of  mas- 
ter and  servant  may  exist  for  the  purposes 
of  this  action,  although  the  daughter  was 
in  the  service  of  a  third  person  at  the  time 
of  her  seduction,  provided  the  case  be  such 
that  the  father  had  then  a  legal  right  to 
her  services,  and  might  have  commanded 
them  at  pleasure."  But  it  was  there  held 
that  the  step-father  had  no  such  right, 
and  consequeutlj-  could   not  maintain  the- 


NEGLIGENCE. 


219 


action.  In  Pennsylvania  a  similar  rule 
has  been  adopted.  Hornlieth  v.  Barr,  8 
Serg.  &  R.  36;  Pluraer  v.  Robertson,  6 
Serg.  &  R.  177.  See,  also,  Mercer  v.  W'alms- 
ley,  5  Har.  &  J.  27.  And  Greeuleaf,  in  his 
treatise  on  Evidence,  lays  it  down  as  the 
established  Aiuerican  rule.  2  Greenl.  Ev. 
§  576.  Whether  it  be  more  or  less  consist- 
ent with  principle  and  policy  than  tiie 
Engli.sh  rule  it  is  now  to  late  to  inquire. 
It  is  too  well  established  by  authority. 
The  case  of  Dain  v.  Wycoff.  7  N.  Y.  191, 
was  cited   on  the  part  of  the  defendant ; 


but  it  wiU  be  seen,  by  reference  to  the 
opinion  delivered  in  that  case,  that  it  was 
decided  upon  the  very  distinction  which 
has  been  laid  down  in  the  adjudications 
referred  to.  In  that  case  the  plaintiff's 
daughter  was  bound  out  to  service  to 
another,  and  the  plaintiff  had  no  right  to 
her  services.  The  judgment  should  be 
affirmed. 

All  the  judges,  except  Ruggles,  who  did 
not  hear  the  argument  and  took  no  part 
in  the  decision,  concurred. 

Judgment  affirmed. 


(See,  also,  Lawrence  v.  Spence,  99  N.  Y.  669,  2  N.  E.  Rep.  145;  White  v.  Nellis,  31  N.  Y.  405; 
Riddle  v.  McGinnis,  22  W.  Va.  253;  Blagge  v.  Ilsley,  127  Mass.  191;  Lavery  v.  Crooke,  52  Wis.  612,  d  N. 
W.  Rep.  599;  Ogbom  v.  Francis,  44  N.  J.  Law,  441.) 


NEGLIGENCE. 


I.  NEGLIGENCE  GIVES  A  CAUSE  OF  ACTION  WHEN  IT  VIOLATES  A 

LEGAL  DUTY. 


(101  N.  Y.  391,  4  N.  E.  Rep.  752.) 

Larmork  v.  Crow.v  Point  Iron  Co. 

(Court  of  Appeals  of  New  York.     Feb.  9,  18S6.) 

Negligence  —  Dangekous  Premises—  Defective 
Machine. 
A  person  wbo  goes  upon  the  land  of  another 
without  invitation,  to  secure  employment  from 
the  owner  of  the  land,  is  not  entitled  to  indem- 
nity from  such  owner  for  an  injury  happening 
from  the  operation  of  a  defective  machine  on  the 
premises,  not  obviously  dangerous,  which  he 
passes  in  the  course  of  his  journey,  though  he 
can  show  that  the  owner  might  have  ascertained 
the  defect  by  the  exercise  of  reasonable  care,  for 
as  to  such  person  there  is  no  violation  of  a  legal 
duty.  31  Hun,  87,  mem.,  reversed.  Ruger,  C. 
J.,  dissenting. 

Appeal  from  supreme  court,  general 
term,  third  department. 

Action  by  Dennis  Larmore  against  the 
Crown  Point  Iron  Company  for  personal 
injuries  caused  by  the  alleged  negligence 
of  defendant.  Verdict  and  judgment  for 
plaintiff.  A  motion  for  a  new  trial  was 
deuiefl,  and  defendant  appealed  to  the 
general  term,  which  affirmed  the  judgment, 
and  defendant  again  appealed. 

M.  D.  Graver,  for  appellant.  Matthew 
Bale,  for  respondent. 

Andrews,  J.  We  are  unable  to  perceive, 
upon  the  evidence  in  this  case,  tliat  any 
duty  rested  on  the  defendant  to  keep  the 
whimsey  in  repair  for  the  protection  of 
the  plaintiff.  The  defendant,  for  its  own 
purposes,  and  in  the  prosecution  of  its 
business,  had  constructed  a  machine  for 
raising  ore  from  its  mines.  It  consisted 
of  an  upright,  or  mast,  in  which  a  lever 
was  inserted  by  the  device  of  a  mortise 
and  tenon,  and,  as  an  additional  precau- 
tion for  keeping  the  lever  in  place,  an  iron 
pin  was  di'iven  through  the  mast  and  ten- 
on. The  machine  was  worked  by  attach- 
ing horses  to  the  end  of  the  lever,  hx 
medns   whereof  a  bucket  filled  with   ore 


was  raised  from  the  mine  to  the  surface 
of  the  ground,  and,  when  discharged,  the 
bucket,  by  its  own  weight,  descended, 
turning  the  lever  with  some  rapidity  in 
its  descent.  The  lever,  on  the  occasion  in 
question,  while  the  bucket  was  descending, 
was  thrown  out  of  the  socket  at  the 
mast,  and,  flying  around,  hit  and  broke 
the  legs  of  the  plaintiff,  who  was  in  a 
path  leading  to  one  of  the  pits  worked  by 
the  defendant.  The  machine  had  been  in 
use  several  years  without  accident.  It 
appeared,  on  examination  of  the  lever, 
after  the  occurrence  in  question,  that  the 
pin  which  held  it  to  the  mast  had  broken 
through  the  wood  of  the  tenon,  back  of 
the  point  where  the  pin  passed  through 
it.  and  the  lever,  not  being  firmly  held  to 
its  place  by  the  other  arrangements, came 
out,  and  caused  the  injury.  There  was 
evidence  that  other  and  surer  precautions 
might  have  been,  and  in  other  mines  had 
sometimes  been,  taken,  to  secure  the  lever 
to  the  mast,  than  those  adopted  by  the 
defendant.  But  the  judge  excluded  the 
question  of  faulty  construction  from  the 
jury,  and  submitted  to  them,  as  the  sole 
ground  of  negligence  to  be  considered, 
whether  the  defendant  had  omitted  to 
make  proper  inspection  of  the  machine, 
to  discover  defects  arising  after  its  orig- 
inal construction,  or  to  make  proper  re- 
pairs to  render  it  safe. 

The  negligence  of  the  defendant,  if  any, 
upon  the  case  as  presented,  consisted  in  an 
omission  to  take  affirmative  measures 
to  ascertain  and  remedy  defects  in  a  ma- 
chine originally  suitable,  developed  by  use, 
and  which  might  have  been  discovered 
by  proper  inspection.  It  may  be  assumed, 
and  the  assumption  is  justified  by  decided 
cases,  that,  as  to  persons  standing  in  cer- 
tain relations  to  the  defendant,  a  duty 
rested  upon  the  comi)any  to  exercise  rea- 
sonable care  in  the  maintenance  and  rep- 
aration of  the  machine,  and  that  a  fail- 


-220 


LAW  OF  TOUTS. 


lire  to  perform  it  would  subject  the  defend- 
ant to  liability  to  persons  occup3uug  such 
special  relations,  who  should  sustain  in- 
jury from  the  omission.  But  the  plaintiff 
stood  in  no  such  relation  to  the  defend- 
ant as  imposed  upon  it  the  duty  to  keep 
the  machine  in  repair.  He  was,  at  the 
time  of  the  accident,  in  every  legal  sense  a 
stranger  to  the  defendant.  He  had  before 
that  been  employed  by  the  superintendent 
of  the  com]iany  to  work  by  the  day,  and 
had  been  assigned  to  a  pai'ticular  service, 
which,  however,  he  had  abandoned  two 
days  before  the  accident,  and  on  the  day 
tif  the  accident  he  went  upon  the  defend- 
ant's lana  to  seek  further  employment  at 
a  pit,  to  which  the  path,  used  by  the 
workmen,  led,  on  which  he  was  standing 
when  the  accident  happened.  He  was  on 
the  premises  at  most  bj'  the  mere  implied 
sufferance  or  license  of  the  defendant,  and 
not  on  its  invitation,  express  or  implied  ; 
nor  was  he  there,  in  any  proper  sense,  on 
the  business  of  the  company.  Thesugges- 
Tion  made  to  him  by  the  foreman  at  pit 
No.  5,  two  days  before  the  accident,  on 
tlie  occasion  of  his  refusing  to  work  at 
that  pit  an3'  longer,  on  account  of  the  sup- 
posed danger,  that  he  could  probably  "get 
a  cliance"  at  some  other  pit.  v,'as  not  an 
authoritj'  or  invitation  by  the  company 
to  him  to  visit  the  other  pits  on  the  prem- 
ises. The  foreman  had  no  authority  to 
give  the  plaintiff  permission  to  go  else- 
where upon  the  defendant's  lands, and  the 
suggestion  was  obviously  a  mere  friendly 
one,  made  by  the  foreman  in  the  interest 
of  the  plaintiff.  The  fact  that  the  plain- 
tiff had,  on  going  to  pit  No.  10,  engaged 
to  commence  work  there  on  the  following 
Monday,  did  not  change  bis  relation  to  the 
defendant,  or  make  him  other  than  a 
mere  licensee  on  the  premises.  He  went 
there  on  his  own  business,  and  in  return- 
ing he  was  subserving  his  own  purposes 
only. 

The  precise  question  is  whether  a  person 
who  goes  upon  the  land  of  another  with- 
out invitation,  to  secure  employmentfrom 
the  owner  of  the  land,  is  entitled  to  indem- 
nityfrom  such  ownerfor  an  injury  happen- 
ing from  the  operation  of  a  defective  ma- 
chine on  the  premises,  not  obviously  dan- 
gerous, which  he  passes  in  the  course  of  his 
journey,  if  he  can  show  that  the  owner 
might  have  ascertained  the  defect  by  the 
exercise  of  reasonable  care.  We  know  of  no 
case  whicli  goes  to  this  extent.  There  is  no 
negligence,  in  a  legal  sense,  which  can  give 
a  right  of  action,  unless  there  is  a  violation 
of  a  legal  duty  to  exercise  care.  The  dutj' 
may  exist  as  to  some  persons,  and  not  as 
to  others,  depending  upon  peculiar  rela- 
tions and  circumstances.  An  employer  is 
requirpd  to  take  reasonable  precautions 
and  to  exercise  reasonable  care  in  provid- 
ing safe  niachinery  and  appliances  for  the 
use  of  his  servant.     The  dvtj  arises  out  of 

(See,  also,  Sweeny  v.  Railroad  Co.,  10  Allen,  368;  Railroad  Co.  v.  Munger,  5  Denio,  255,  266;  Nich- 
olson V.  Railroad  Co.,  41  N.  Y.  525;  Railroad  Co.  v.  Coon,  111  Pa.  St.  430,  3  All.  Rep.  234;  Heaven  v. 
Pender,  11  Q.  B.  Div.  503 ;  Batchelor  v.  Fortescue,  Id.  474;  Indermaur  v.  Dames,  L.  R.  1  C.  P.  274,  L.  R, 
2  C.  P.  311.)  .  .  > 


the  relation.  Fuller  v.  Jewett,  80  N.  Y.  46. 
The  owner  of  land,  in  general,  may  use  it 
as  he  pleases,  and  leave  it  in  such  condi- 
tion as  he  pleases;  but  he  cannot,  with- 
out giving  any  warning,  p'ace  thereon 
spring-guns  or  dangerous  traps  which 
may  subject  a  person  innocently  going  on 
the  premises,  though  without  actual  per- 
mission or  license,  to  injury,  without  lia- 
bility. The  value  of  human  life  forbids 
measures  for  the  protection  of  the  posses- 
sion of  real  property  against  a  mere  in- 
truder, which  may  be  attended  by  such 
ruinous  consequences.  The  duty  in  this 
case  gron  s  out  of  the  circumstances,  inde- 
pendently of  any  question  of  license  to  en- 
ter the  premises.  Bird  v.  Holbrook,  4 
Bing.  628.  So,  also,  where  the  owner  of 
land,  in  the  prosecution  of  his  own  pur- 
poses or  business,  or  of  a  purpose  or  busi- 
ness in  which  there  is  a  (Common  interest, 
invites  another,  either  expressly  or  im- 
pliedly, to  come  upon  his  premises,  he  can- 
not with  impunity  expose  him  to  unrea- 
sonable or  concealed  dangers;  as,  for  ex- 
ample, from  an  open  trap  in  a  passage- 
way. The  duty  in  this  case  is  founded 
upon  the  plainest  principles  of  justice. 
Corby  v.  Hill,  4  C.  B.  (N,  S.)  556;  Smith  v. 
London,  etc..  Docks  Co.,  L.  R.  3  C.  P.  826; 
Holmes  v.  Railway  Co.,  L.  R.  6  Exch.  123. 
The  duty  of  keeping  premises  in  a  safe  con- 
dition, even  as  against  a  mere  licensee, 
may  also  arise  where  affiruiative  negli- 
gence in  tiie  management  of  the  property 
or  business  of  the  owner  would  be  likely  to 
subject  persons  exercising  the  privilege 
theretofore  permitted  and  enjoyed,  to 
great  danger.  The  case  of  running  a  loco- 
motive, without  warning,  over  a  path 
across  the  railroad,  which  had  been  gen- 
erally used  by  the  public  without  objec- 
tion, furnishes  an  example.  Barrj^  v.  Rail- 
way Co.,  92  N.  Y.  289.  See,  also,  Beck  v. 
Carter,  68  N.  Y.   283. 

The  cases  referred  to  proceed  upon  defi- 
nite and  intelligible  grounds,  the  justice  of 
which  cannot  reasonably  be  controverted. 
But  in  the  case  before  us  there  were  no  cir- 
cu Distances  creating  a  duty  on  the  part  of 
the  defendant,  to  the  plaintiff,  to  keep  the 
whimsey  in  repair,  and  consequently  no 
obligation  to  remunerate  the  latter  for  his 
injury.  The  machine  was  not  intrinsical- 
ly dangerous.  The  plaintiff  was  a  mere 
licensee.  The  negligence,  if  any,  was  pas- 
sive, and  not  active, — of  omission,  and 
not  of  commission.  Dnder  the  circum- 
stances, we  think  the  motion  for  nonsuit 
should  have  been  granted.  See  Severy  v. 
Nickerson,  120  Mass.  306;  Hounsell  v. 
Smyth,  7C.  B,  (N.  S.)  731. 

The  judgment  should  therefore  be  re- 
versed, and  a  new  trial  ordered. 

Eapallo,  Earl,  and  Finch,  JJ.,  concur. 
Danforth,  J.,  concurs  in  result.  Ruger, 
C.  J.,  dissenting.    Miller,  J.,  not  voting. 


NEGLIGENCE. 


221 


II.  LIABILITY  FOR  NEGLIGENCE  CONTRASTED  WITH  ABSOLUTE  LIA- 
BILITY. 


(38  N.  J.  Law,  339.) 

Marshall  v.  Welwood  et  al. 

{Supreme  Court  of  New  Jersey.    June  Term, 
1876.) 

Negligexce — ExPLOsioK  OF  Steam-Boiler. 

An  owner  is  not  liable  for  injuries  caused  by 
the  explosion  of  a  steam-boiler  used  by  him  on 
his  premises,  without  proof  of  want  of  due  care 
and  skill  on  the  part  of  him  or  his  agent. 

Motion  for  new  trial. 

Action  by  Maurice  F.  Marshall  against 
Josepii  Welwood  and  Melville  Garside  for 
damages  to  plaintiff's  property  caused  by 
the  explosion  of  a  steam-boiler  on  defend- 
ant Welwood's  adjoining  premises,  which 
boiler  Welwood  had  bought  from  defend- 
ant Garside,  who  was  experimenting  with 
it  at  the  time  of  the  explosion.  The  verdict 
was  for  plaintiff  against  both  defendants. 
Defendants  moved  for  a  new  trial. 

Argued  before  Beasley,  C. J.,  and  Wood- 
hull,  Van  Syckel,  and   Scudper,  J  J. 

J.  B.  Vredenburgb,  for  the  motion. 

Beasley,  C.  J.    The  judge  at  the  trial 
of  this  cause  charged,  among   other  mat- 
ters,  that   as   the  evidence  incontestably 
showed  that   one  of   the  defendants,  Wel- 
wood. was  the  owner  of  the  boiler   which 
caused  the   damage,  he   was   liable  in   the 
action,  unless  it   appeared   that  the   same 
was  not  being   run    by  him,  or  his   agent, 
at  the  time  of  theexplosion.     Theproposi- 
tion  propounded  was  that  a   person  is  re-  ' 
sponsible  for  the  immediate  consequences  j 
of  the  bursting  of  a  steam-boiler,  in  use  by  i 
him,   irrespective  of  any   question   as    to  ' 
negligence   or  want   of   skill  on    his   part. 
This  view  of  the  law  is  in  accordance  with  ' 
the    principles     maintained,    with     great 
learning  and   force  of  reasoning,  in   some  j 
of   the   late    English     decisions.      In    this ; 
class  the  leading   case  is   that  of  Fletcher 
V.  R3-]ands,  L.    R.  1    Exch.  26.5,  wiiich  was 
a  suit  on  account  of  damage   done  b3'  wa- 
ter   escaping    onto    the    premises   of    the 
plaintiff  from  a  reservoir  which  the  defend- 
ant  had   constructed,  with   due  care   and 
skill,   on   his   own    land.      The  judgment  j 
was  put  on  a  general  ground,  for  thecourt 
said:   "We    think   the  true   rule  of   law  is 
that  the  person  who.  for  his  own  purposes,  I 
brings  on  his  lands  and  collects  and  keeps  i 
there   anj'thing  likely  to   do  mischief  if  it  | 
escapes,  must  kee])  it  In  at  his   peril,  and,  I 
if  he  does  not  do  so,  is  prima  /;jc/eanswer-  j 
able  for  all  the   damage  which   is  the  nat- 1 
ural  consequence  of  its   escape.  "    This  re-  I 
suit  was   deemed  just,  and  was  sought  to 
be  vindicated  on  the  theory  that   it  is  but ! 
reasonable  that  a  person  who  has  brcnight 
something  on  hiscjwn  i)roperty  which  was  \ 
not   naturally    th^rc.  harmless  to    others  '- 
so  long  as  it  is  confined  to  his  own  proper- 
ty, but  which  he  knows  to  be  mischievous  ; 
if  it    gets    on    his   neijrhbor's,   should    be  ' 
obliged  to  make  good  the   damage  which 
ensues,  if  he  does  not  succeed  in   confining 
it   to   his   own   property.     This   principle 
would  evidently  apply  to  and  rulethe  pres- 


ent case;  for  water  is  no  more  likely  to 
e8cai)e  from  a  reservoir  and  do  damage 
than  steam  is  from  a  boiler;  and  there- 
fore if  he  who  collects  the  former  force  up- 
on his  property,  and  seeks,  with  care  and 
skill,  to  keep  it  there,  is  answerable  for 
hia  want  of  success,  so  is  he  who,  under 
similar  conditions, endeavors  to  deal  with 
the  latter.  There  is  nothing  unlawful  in 
introducing  water  into  a  properly  con- 
structed reservoir  on  a  person's  own  land, 
nor  in  raising  steam  In  a  boiler  of  proper 
qualitv.  Neither  act,  when  performed,  is 
a  nuisance  perse;  and  the  inquiry  conse- 
quently is  whether,  in  the  doing  of  such 
lawful  act,  the  partj'  who  does  it  is  an 
insurer  against  all  flaws  in  the  apparatus 
employed,  no  matter  how  secret  or  unas- 
certainable,  by  the  use  of  every  reasona- 
ble test,  such  flaws  may  be.  This  English 
adjudication  takes  the  affirmative  side  of 
the  question,  conceding,  however,  that 
the  subject  is  not  controlled  by  any  ex- 
press decision,  and  that  it  is  to  be  investi- 
gated with  reference  to  the  general  grounds 
of  jurisprudence. 

I  have  said  the  doctrine  involved  has 
been  learnedly  treated,  and  the  decision  is 
of  great  weight,  and  yet  its  reasoning  has 
failed  to  convince  me  of  the  correctness  of 
the  result  to  which  it  leads,  and  such  re- 
sult is  clearly  opposed  to  the  course  which 
judicial  opinion  has  taken  in  this  country. 
The  fallacy  in  the  process  of  argument  by 
which  judgment  is  reached  in  -this  case  of 
Fletcher  v.  Kylands  appears  to  me  to  con- 
sist in  this:  that  the  rule  mainly  applica- 
ble to  a  class  of  cases  which  I  think  should 
be  regarded  as.  in  a  great  degree,  excep- 
tional, is  amplified  and  extended  into  a 
general,  if  not  universal,  principle.  The 
principal  instance  upon  which  reliance  is 
placed  Is  the  well-known  obligation  of  the 
owner  of  cattle  to  prevent  them  from  es- 
caping from  his  land  and  doing  mischief. 
The  law  as  to  this  point  is  perfectly'  set- 
tled, and  has  been  settled  from  the  earliest 
times,  and  is  to  the  effect  that  the  owner 
must  take  charge  of  his  cattle  at  his  peril, 
and,  if  they  evade  his  custody,  he  is,  in 
some  measure,  responsible  for  the  conse- 
quences. This  is  the  doctrine  of  the  Year 
Books,  but  I  do  not  find  that  it  isground- 
ed  in  any  theoretical  pi  inciple,  making  a 
man  answerable  for  his  acts  or  omissicjns, 
without  regard  to  his  culpability.  That 
in  this  particular  case  of  esca[)ing  cattle 
so  stringent  an  obligation  upon  the  owner 
snould  grow  up,  was  not  unnatural. 
That  the  beasts  of  the  land-owner  should 
be  successfully  restrained  was  a  condition 
of  considerable  importance  to  the  unmo- 
lested enjoyment  of  property,  and  the 
right  to  plead  that  the  escape  had  oc- 
curred by  inevitable  accident  would  have 
serioush-  impaired,  if  it  ciid  nt)t  entirely 
frustrate,  the  process  of  distress  damage- 
feasant.  Custom  has  had  much  to  do  in 
giving  shape  o  the  law  and  what  is  high- 
ly convenient  readily  runs  into  usage,  and 
is  accepted  as  a  rule.  It  would  but  rare- 
ly  occur  that  cattle  would   escape  from  a 


222 


LAW  OF  TORTS. 


\ 


viojilant  owner,  and  in  this  instance  such 
rare  exceptions  seem  to  have  passed  un- 
noticed, for  there  appears  to  be  no  exam- 
ple of  the  point  having  been  presented  for 
judicial  consideration;  for  the  conclusion 
of  the  liability  of  the  unnegligeut  owner 
rests  in  dicta,  and  not  in  express  decision. 
But,  waiving  this,  there  is  a  consideration 
which  seems  to  me  to  show  that  this  obli- 
gation, which  is  put  upon  the  owner  of 
errant  cattle,  should  not  be  taken  to  be  a 
principle  applicable,  in  a  general  way,  to 
the  use  or  ownership  of  property,  which  is 
this :  that  the  owner  of  such  cattleis,  after 
all,  liable  only  sub  inodo  for  the  injury 
done  by  them ;  that  is,  he  is  responsible, 
with  regard  to  tame  beasts  who  have  no 
yexceptionally  vicious  disposition  so  far  as 
is  known,  for  the  grass  they  eat,  and  such 
like  injuries,  but  not  for  the  hurt  they  may 
inflict  on  the  person  of  others, — a  restric- 
tion on  liability  which  is  hardly  consistent 
with  the  notion  that  this  class  of  cases 
proceeds  from  a  principle  so  wide  as  to 
embrace  all  persons  whose  lawful  acts 
produce,  without  fault  in  them,  and  in  an 
indirect  manner,  ill  results  which  dis- 
astrously affect  innocent  persons.  If  the 
principle  ruling  these  cases  was  so  broad 
as  this,  conformity  to  it  would  require 
that  the  person,  being  the  cause  of  the 
mischief,  should  stand  as  an  indemnifier 
against  the  whole  of  the  damage.  It  ap- 
pears to  me,  therefore,  that  this  rule, 
which  applies  to  damage  done  by  straying 
cattle,  was  carried  bej'ond  its  true  bounds, 
when  it  was  appealed  to  as  proof  that  a 
person  in  law  is  answerable  for  the  nat- 
ural consequences  of  his  acts,  such  acts 
being  lawful  in  themselves,  and  having 
been  done  with  proper  care  and  skill. 

The  only  other  cases  which  were  referred 
to  in  support  of  the  judgment  under  con- 
sideration were  those  of  a  man  who  was 
sued  for  not  keeping  the  wall  of  his  privy 
repaired,  to  the  detriment  of  his  neighboi-, 
being  the  case  of  Tenant  v.  Golding,  1 
Salk.  21  ;  and  several  actions  which  it  is 
said  had  been  brought  against  the  owners 
of  some  alkali  works  for  damages  alleged 
to  have  been  caused  by  the  chlorine  fumes 
escaping  from  their  works,  which  works 
the  case  showed  had  been  erected  upon 
the  best  scientific  principles.  But  I  am 
compelled  to  think  that  these  cases  are  but 
a  slender  basis  for  the  large  structure  put 
upon  it.  The  case  of  Tenant  v.  Golding 
presented  merely  the  question  whether  a 
land-owner  is  bound  in  favor  of  his  neigh- 
bor to  keep  the  wall  of  his  privy  in  repair, 
and  the  court  held  that  he  was,  and  that 
he  was  responsible  if,  for  want  of  such  rep- 
aration, the  filth  escaped  on  the  adjoin- 
ing land.  No  question  was  mooted  as  to 
his  liabilitj'  in  case  the  privy  had  been 
constructed  with  care  and  skill,  with  a 
view  to  prevent  the  escape  of  its  contents, 
and  had  been  kept  in  a  state  of  repair. 
Not  to  repair  a  receptacle  of  this  kind  was, 
in  itself,  a  prima  fucie  case  of  negligence, 
and  it  seems  to  me  that  all  the  court  de- 
cided was  to  hold  so.  But  this  considera- 
tion is  also  to  be  noticed,  both  with  re- 
spect to  tills  last  case,  and  that  of  the  in- 
jurious fumes  from  the  alkali  works,  that 
in  truth  they  stand  somewhat  by  them- 
selves, and  having   this  peculiarity:  that 


the  things  in  their  nature  partake  laigely 
of  the  character  of  nuisances.  Take  the 
alkali  works  as  an  example.  Placed  in  a 
town,  under  ordinary  circumstances,  they 
would  be  a  nuisance.  When  the  attempt 
is  made  by  scientific  methods  to  prevent 
the  escape  of  the  fumes,  it  is  an  attempt 
to  legalize  that  which  is  illegal,  and  the 
consequence  is,  it  may  well  be  held  that, 
failing  in  the  attempt,  the  nuisance  re- 
mains. I  cannot  agree  that  from  these 
indications  the  broad  doctrine  is  to  be 
drawn  that  a  man  in  law  is  an  insurer 
that  the  acts  which  he  does,  such  acts  be- 
ing lawful  and  done  with  care,  shall  not 
injuriously  affect  others.  The  decisions 
cited  are  not  so  much  examples  of  legal 
maxims  as  of  exceptions  to  such  maxims; 
for  they  stand  oppo.sed  and  in  contrast  to 
principles  which  it  seems  to  me  must  be 
considered  much  more  general  in  their  oper- 
ation and  elementary'  in  their  nature. 
The  common  rule,  quite  institutional  in  its 
character,  is  that,  in  order  to  sustain  an 
action  for  a  tort,  the  damage  complained 
of  must  come  from  a  wrongful  act.  Mr. 
Addison,  in  his  work  on  Torts,  (volume 
1,  p.  3,)  very  correctly  states  this  rule. 
He  says  :  "A  man  may,  however,  sustain 
grievous  damage  at  the  hands  of  another, 
and  yet,  if  it  be  the  result  of  inevitable  ac- 
cident, or  a  lawful  act.  done  in  a  lawful 
manner,  without  any  carelessness  or  neg- 
ligence, there  is  no  legal  injur3',  and  no 
tort  giving  rise  to  an  action  for  damages.  " 
Among  other  examples,  he  refers  to  an  act 
of  force,  done  in  necessary  self-defense, 
causing  injury  to  an  innocent  by-stander, 
which  he  characterizes  as  da ninu in  siae  in- 
juria, "for  no  man  does  wrong  or  con- 
tracts guilt  in  defending  himself  against 
an  aggressor.  "  Other  instances  of  a  like 
kind  are  noted,  such  as  the  lawful  obstruc- 
tion of  the  view  from  the  windows  of 
dwelling-houses;  or  the  turning  aside,  to 
the  detriment  of  another,  the  current  of 
the  sea  or  river,  by  means  of  walls  or 
dykes.  Manj'  illustrations  of  the  same 
bearing  are  to  be  found  scattered  through 
the  books  of  reports.  Tlius  Dyer,  25b, 
says"  that, if  a  man  have  a  dog  which  has 
killed  sheep,  the  master  of  the  dog  bting 
ignorant  of  such  quality  and  property  of 
the  dog,  the  master  shall  not  be  punished 
for  that  killing."  This  case  belongs  to  a 
numerous,  well-known  class,  where  ani- 
mals which  are  usually  harmless  do  dam- 
age; the  decisions  being  that,  under  such 
conditions,  the  owners  of  the  animals  are 
not  responsible.  Akin  to  these  in  princi- 
ple are  cases  of  injury  done  to  innocent 
persons  by  horses,  in  the  charge  of  their 
owners,  becoming  ungovernable  by  rea- 
son of  unexpected  causes;  or  where  a  per- 
son in  a  dock  was  struck  by  the  falling  of 
a  bale  of  cotton  which  the  defendant's 
servants  were  lowering,  (Scott  v.  Dock 
Co.,  3  Hurl.  &  C.  596;)  or  in  cases  of  collis- 
ion, either  on  land  or  sea,  (Hammack  v. 
White,  11  C.  B.,  N.  S.,  588.) 

It  is  true  that  these  cases  of  injury  done 
to  personal  property,  or  to  persons,  are, 
in  the  case  of  Fletcher  v.  Rjiands,  sought 
to  be  distinguished  from  other  damages, 
on  the  ground  that  they  are  done  in  tiie 
course  of  traffic  on  the  highwaj'S,  whether 
b3'  land  or  sea,  which  cannot  be  conduct- 


NEGLIGENCE. 


223 


ed  without  exposing  those  whose  persons  |  can  be  shown.    A  man's  guest  is  hurt  by 
or  propei-t^-  are  near  it  to  some  inevitable    the  falling   of  a  chandelier;  a  suit  will  not 


risk.  But  this  explanation  is  not  suffi 
ciently  comprehensive;  for  if  a  frightened 
Ijor.se  should,  in  his  flight,  break  into  an 
inclosure,  no  matter  how  far  removed 
from  the  highway,  the  owner  would  not 
be  an.swerable  for  the  damage  done.  Nor 
is  the  reason  upon  which  it  rests  satisfac- 
tory ;  for,  if  traffic  cannot  be  carried  on 
without  some  risk,  why  can  it  not  be  said, 
with  the  same  truth,  that  the  other  affairs 
vi  life,  though  they  be  transacted  away 
from  the  highways,  cannot  be  carried  on 
without  some  risk  ;  and  if  such  risk  is,  in 
tiie  one  case,  to  be  bcjrne  by  innocent  per- 
sons, why  not  in  the  otiier?  Business 
done  upon  private  propertj'  may  be  a 
part  of  traffic  as  well  as  that  done  by 
means  of  the  highway,  and  no  reason  is 
perceived  why  the  same  favor  is  not  to  be 
extended  to  it  in  both  situations.  But, 
besides  this,  the  reason  thus  assigned  for 
the  immunity  of  him  who  is  the  unwilling 
producer  of  the  damage  has  not  been  the 
ground  on  which  the  decisions  illustrative 
of  the  rule  have  been  put;  the  ground  has 


lie  against  the  host,  without  ijroof  that 
he  knew,  or  ought  to  have  known,  of  the 
existence  of  the  danger.  If  the  steam-en- 
gine which  did  the  mischief  in  the  present 
case  had  been  in  use  in  driving  a  train  of 
cars  on  a  railroad,  and  had,  in  that  situa- 
tion, exploded,  and  had  inflicted  injuries 
on  travelers  or  by-standers,  it  could  not 
have  been  pretended  that  such  damage 
was  actionalile,  in  the  absence  of  the  ele- 
ment of  negligence  or  unskillfulness.  By 
changing  the  place  of  the  accident  to  pri- 
vate property,  I  cannot  agree  that  adifter- 
ent  rule  obtains. 

It  seems  to  me,  therefore,  that  in  this 
case  it  was  necessarj-  to  submit  the  mat- 
ter, as  a  question  of  fact  for  the  jury, 
whether  the  occurrence  doing  the  damage 
complained  of  was  the  product  of  pure  ac- 
cident, or  the  result  of  want  of  care  or 
skill  on  the  iiart  of  the  defendant  or  his 
agents.  This  view  of  the  subject  is  taken 
in  the  American  decisions.  A  case  in  all 
respects  in  point  is  that  of  Losee  v.  Bu- 
chanan, 51   N.  Y.  476.     The  facts  were  es- 


beenthat  the  person  sought  to  be  charged  |  sentially  the  same  with  those  of  the  prin- 
had  not  done  any  unlawful  act.  Every-  cipal  case.  It  was  an  action  growing  out 
where, in  all  brauchesofthelaw.thegeueral  [  of  the  explosion  ofa  steam-boiler  upon  pri- 
principle  that  blame  must  be  imputa-  j  vate  property,  and  the  ruling  was  that 
ble  as  a  ground  of  responsibility  for  dam-  j  such  action  could  not  be  sustained  with- 
age  proceeding  from  a  lawful  act  is  appar-  out  proof  of  fault  or  negligence.  In  that 
ent.  A  passenger  is  injured  by  the  break  I  report  the  line  of  cases  is  so  fully  set  out 
ing  of  an  axle  of  a  public  conveyance;  i  that  it  is  unnecessary  here  to  repeat  them, 
the  carrier  is  not   liable,  unless   negligence  ,     The  rule  should  be  made  absolute. 

(See.  also,  Losee  v  Buchanan,  51  N.  Y.  476;  Brown  v.  Collins,  53  N.  H.  442;  Fletcher  v.  Rylands, 
L.  R.  1  Exch.  26"),  L.  R.  3  H.  L.  330.  In  Massachusetts  the  English  doctrine  is  followed;  Gorham  v. 
Gross,  125  Mass.  238.) 


III.  CONTRIBUTORY  NEGLIGENCE. 


1.  General  principle. 


(95  U.  S.  439.) 

Baltimore  &  P.  K.  Co.  v.  Jones. 

(Swpreme  Couit  of  United  States.    Oct.  Term, 
1877.) 

1.  Contributory  Negligence — Defeating  a  Re- 

covert. 
Where  a  person's  own  negligence  or  want  of 
ordinarj"  care  and  caution  so  far  contributes  to 
au  injury  to  himself  that  but  for  such  negligence 
or  want  of  ordinary  care  and  caution  on  his  own 
part  the  injury  would  not  have  happened,  he 
cannot  recover  Iherefor. 

2.  Same — Master  and  Servant. 

Railroad  workmen  were  accustomed  to  ride  to 
and  from  their  work  on  the  pilot  and  tender  of 
the  engine  of  the  worli-traiii,  though  they  had 
been  informed  that  it  was  dangerous,  and  a  box- 
car had  been  provided  for  them.  In  a  collision 
between  such  work-train  and  cars  standing  on 
the  track,  plaintiff,  riding  on  the  pilot,  was  in 
jured,  while  the  workmen  in  the  box-car  were 
not  injured.  Held,  that  plaintiff  was  guilty  of 
contributory  negligence,  which  would  defeat  a 
recovery  for  his  injuries  in  an  action  against  the 
railroad  company,  and  that  it  was  no  excuse  that 
he  was  told  by  the  engineer,  when  the  train  was 
starting,  to  "hurry  up." 

Error  to  the  supreme  court  of    the  Dis- 
trict of  Columliia. 
Action  by  William  H.  Jones  against  the 


Baltimore  &  Potomac  Railroad  Company 
to  recover  for  personal  injuries  caused  by 
the  alleged  negligence  of  defendant.  Ver- 
dict and  judgment  were  for  [jlaintiff.  De- 
fendant sued  out  a  writ  of  error. 

Enoch  Totten,  for  plaintiff  in  error. 
Edward  C.  Carriogton  and  Campbell 
CarringtOD,  contra. 

SwAYNE.  J,  The  defendant  in  error  was 
the  plaintiff  in  the  court  helow.  Upon  the 
trial  there  he  gave  evidence  to  the  follow- 
ing effect:  For  several  months  prior  to 
the  12th  of  November,  1S72,  he  was  in  the 
service  ol  the  company  as  a  day  laborer. 
He  was  one  of  a  party  of  men  employed 
in  constructing  and  keeping  in  repair  the 
road-wa3'  of  the  defendant.  It  wus  usual 
for  the  defendant  to  convey  them  to  and 
from  their  place  of  work.  Sometimes  a 
car  was  used  for  this  purpose;  at  othei^s, 
onl3' a  locomotive  and  tender  were  provid- 
ed. It  was  common,  whether  a  car  was 
provided  or  not.  for  some  of  the  men  to 
ride  on  the  pilot  or  bumper  in  front  of  the 
locomotive.  This  was  done  with  the  ap- 
proval of  Van  Ness,  wiio  was  in  charge  of 
the  laborers  when  at  work,  and  the  con- 
ductor of  the  train  which  carried  them 
both  ways.     The  plaintiff  had  no  counee- 


224 


LAW  OF  TUKTS. 


tion  with  the  train.  On  the  12th  of  No- 
vember, before  mentioned,  the  party  of 
laborers,  including  the  plaintiff,  under  the 
direction  of  Van  Ness,  were  employed  on 
the  west  side  of  the  eastern  branch  of  the 
Potomac,  near  where  the  defendant's  road 
crosses  that  stream,  in  filling;  flat-oars  with 
dirt,  and  unloading;  them  at  an  adjacent 
point.  The  train  that  eveninj;  consisted 
of  a  locomotive,  tender,  and  box-car. 
AVhen  the  party  was  about  to  leave  on 
their  return  that  evening,  the  plaintiff  was 
told  by  Van  Ness  to  jump  on  anywhere; 
that  they  were  behind  time,  and  must 
hurry-  The  plaintiff  was  riding  on  the 
pilot  of  the  locomotive,  and  while  there 
the  train  ran  into  certain  cars  belonging 
to  the  defendant,  and  loaded  with  ties. 
These  cars  had  become  detached  from  an- 
other train  of  cars,  and  were  standing  on 
the  track  in  the  Virginia-Avenue  tunnel. 
The  accident  was  the  result  of  negligence 
on  the  part  of  the  defendant.  Thereby 
one  of  the  plaintiff's  legs  was  severed  from 
his  body,  and  the  other  one  severely  in- 
jured. Nobody  else  was  hurt,  except  two 
other  persons,  one  riding  on  the  pilot 
with  the  plaintiff,  and  the  other  one  on  the 
cars  standing  in  the  tunnel. 

The  defendant  then  gave  evidence  tend- 
ing to  prove  as  follows:  About  six  weeks 
or  two  months  before  the  accident  a  box- 
car had  been  assigned  to  the  construction 
train  with  which  the  plaintiff  was  em- 
ployed. The  car  was  used  thereafter  every 
day.  About  the  time  it  was  first  used, 
and  on  several  occasions  before  the  acci- 
dent, Van  Ness  notified  the  laborers  that 
they  must  ride  in  the  car,  and  not  on  the 
engine;  and  the  plaintiff  in  particular,  on 
several  occasions  not  long  before  tie  dis- 
aster, -was  forbidden  to  ride  on  the  pilot, 
both  by  Van  Ness  and  the  engineer  in 
charge  of  the  locomotive.  The  plaintiff 
was  on  the  pilot  at  the  time  of  the  acci- 
dent, without  the  knowledge  of  anj'  agent 
of  the  defendant.  There  was  plenty  of 
room  for  the  plaintiff  in  the  box-car,  which 
was  open.  If  he  had  been  anywhere  but 
on  the  pilot,  he  would  not  have  been  in- 
jured. The  collision  was  not  brought 
about  by  any  negligence  of  the  defendant's 
agents,  but  was  unavoidable.  The  de- 
fendant's agents  in  charge  of  the  two 
trains,  and  the  watchman  in  the  tunnel, 
were  competent  men. 

The  plaintiff,  in  rebuttal,  gave  evidence 
tending  to  show  that  sometimes  the  box- 
car was  locked  when  there  was  no  other 
car  attached  to  the  train,  and  that  the 
n  en  were  allowed  by  the  conductor  and 
engineer  to  ride  on  the  engine,  and  that 
on  the  evening  of  the  accident  the  engineer 
in  charge  of  the  locomotive  knew  that 
the  plaintiff  was  on  the  pilot. 

The  evidence  being  closed,  the  defend- 
ant's counsel  asked  the  court  to  instruct 
the  jury  as  follows.  ''If  the  jury  find  from 
the  evidence  that  the  plaintiff  knew  the 
box-car  was  the  proper  place  for  him,  and 
if  he  knew  his  position  on  the  pilot  of  the 
engine  was  a  dangerous  one,  then  they 
will  render  a  verdict  for  the  defendant, 
whether  they  find  that  its  agents  allowed 
the  plaintiff  to  ride  on  the  pilot  or  not." 
This  instruction  was  refused,  and  the  de- 
fendant's counsel  excepted. 


Three  questions  arise  upon  the  record  r 
(1)  The  exception  touching  the  admission 
of  evidence.  (2)  As  to  the  application  of 
the  rule  relative  to  injuries  received  by  one 
servant  by  reason  of  the  negligence  of  an- 
other servant,  both  being  at  the  time  en- 
gaged in  the  same  service  of  a  common  su- 
perior. (3)  As  to  contributory  negligence 
on  the  part  of  the  plaintiff. 

We  pass  by  the  first  two  without  re- 
mark. We  have  not  found  it  necessary  to 
consider  them.  In  our  view,  the  point 
presented  by  the  third  is  sufficient  to  dis- 
pose of  the  case.  Negligence  is  the  failure 
to  do  what  a  reasonable  and  prudent  per- 
son would  ordinarily'  have  done  under  the 
circumstances  of  the  situation,  or  doing 
what  such  a  person,  under  the  existing 
circumstances,  would  not  have  done.  The 
essence  of  the  fault  may  lie  in  omission  or 
commission.  The  duty  is  dictated  and 
measured  by  the  exigencies  of  the  occasion. 
See  Whart.  Neg.  §  1,  and  notes.  One  who 
by  his  negligence  has  brought  an  injury 
upon  himself  cannot  recover  damages  for 
it.  Such  is  the  rule  of  the  civil  and  of  the 
common  law.  A  plaintiff  in  such  cases  is 
entitled  to  no  relief.  But  where  the  de- 
fendant has  been  guilty  of  negligence  also, 
in  the  same  connection,  the  result  depends 
upon  the  facts.  The  question  in  such 
cases  is  (1)  whether  the  damage  was 
occasioned  entirely  by  the  negligence  or 
improper  conduct  of  the  defendant ;  or  (2) 
whether  the  plaintiff  himself  so  far  con- 
tributed to  the  misfortune  by  his  own 
negligence,  or  want  of  ordinary  care  and 
caution,  that  but  for  such  negligence  or 
want  of  care  and  caution  on  his  part  the 
misfortune  would  not  have  happened.  In 
the  former  case,  the  plaintiff  is  entitled  to 
recover;  in  the  latter,  he  is  not.  Tuff  v. 
Warman,  5  C.  B.  (N.  S.).=i73;  Butterfield  v. 
Forrester,  11  East,  00;  Bridge  v.  Railroad 
Co.,  3  Mees.  iS:  W.  244;  Da  vies  v  Mann,  10 
Mees.  &  W.  54(5;  Clayards  v.  Dethick,  12  Q. 
B.  439;  Van  Lien  v.  Manufacturing  Co.,  14 
Abb.  Pr.  (N.  S.)  74;  Inee  v.  Ferry  Co.,  106 
Mass.  149. 

It  remains  to  apply  these  tests  to  the 
case  before  us.  The  facts  with  respect  to 
the  cars  left  in  the  tunnel  are  not  fully  dis- 
closed in  the  record.  It  is  not  shown 
when  they  were  left  there,  how  long  they 
had  been  there,  when  it  was  intended  to 
remove  them,  nor  why  they  had  not  been 
removed  before.  It  does  appear  that 
there  was  a  wfitchman  at  the  tunnel,  and 
that  he  and  the  conductor  of  the  train 
from  which  they  were  left,  and  the  con- 
ductor of  the  train  which  carried  the 
I)laintiff,  were  all  well  selected,  and  com- 
petent for  their  places.  For  the  purposes 
of  this  case,  we  assume  that  the  defend- 
ant was  guilty  of  negligence.  The  plain- 
tiff had  been  warned  against  riding  on  the 
pilot,  and  forbidden  to  do  so  It  was 
next  to  the  cow-catcher,  and  obviously  a 
place  of  peril,  especially  in  case  of  collision. 
There  was  room  for  him  in  the  box-car. 
He  should  have  taken  his  place  there.  He 
could  have  gone  into  the  box-car  in  as 
little,  if  not  less,  time  than  it  took  to  climb 
to  the  pilot.  The  knowledge,  assent,  or 
direction  of  the  company's  agents  as  to 
what  he  did  is  immaterial.  If  told  to  get 
on  anywhere,  that  the  train  was  late,  and 


NEGLIGENCE. 


225 


that  he  must  hurry,  this  was  no  justifica-  j 
tion  for  taking  siicli  a  risk.  As  well  might 
he  have  obeyed  a  suggestion  to  ride  on 
the  cow-catcher,  or  put  himself  on  the 
track  before  the  ad vancinti  wheels  of  the 
locomotive.  The  coini)aiiy,  though  bound 
to  a  higl)  degree  of  care,  did  not  insure  his 
safety'.  He  was  not  an  infant  nor  noa 
compos.  The  liability  of  the  company 
was  conditioned  upon  the  exercise  of  rea- 
sonable and  propt-r  care  and  caution  on 
liis  part.  Without  the  latter,  the  former 
could  not  arise.  He  and  another  who 
rode  beside  him  were  the  only  persons 
hurt  upon  the  train.  All  those  in  the  box- 
car, where  he  should  have  been,  were  un- 
injured. He  would  have  escaped  also,  if 
he  had  been  there.  His  injury  was  due 
to  his  own  recklessness  and  folly\  He 
was  himself  the  autlior  of  his  misfortune. 
This  is  shown  Avith  as  near  an  approach 
to  a  demonstrati(jn  as  anj'thing  short  of 
mathematics    will    permit.      The  case  is 

(See,  also,  Wiids  v.  Railroad  Co.,  24  N.  Y.  430; 
1073;  Railroad  Co.  v.  Greiner,  113  Pa.  St.  600,  6  Atl. 
road  Co.  v.  Moore,  24  N.  J.  Law,  824:  Monongahela 
V.  Railroad  Co.,  120  N.  Y.  467,  24  N.  K  Rep.  653.) 


thus  clearly  brought  within  the  second  of 
the  predicates  of  mutual  negligence  we 
have  laid  down.  Hickev  v.  Railroad  Co., 
14  Allen, 420:  Todd  v.  Railroad  Co.,  3  Allen, 
IH,  7  Allen,  207;  Gavett  v.  Railroad  Co.,  16 
Gray,  501 ;  Lucas  v.  Railroad  Co.,  fi  Gray, 
(54;  Ward  v.  Railroad  Co.,  11  Abb.  Pr.  (N. 
S.)411;  Railroad  Co.  v.  Yarwood,  15  111. 
468;  Doggett  v.  Railroad  Co., 34  Iowa,2S4. 
The  plaintiff  was  not  entitled  to  recover. 
It  follows  that  the  court  erred  in  refusing 
the  instruction  asked  upon  this  subject. 
If  the  company  had  prayed  the  court  to 
direct  the  jury  tcj  return  a  verdict  for  the 
defendant,  it  would  have  been  the  duty  of 
the  court  to  give  such  direction,  and  error 
to  refuse.  Gavett  v.  Railroad  Co.,  supra; 
Merchants'  Bank  v.  State  Bank,  10  Wall. 
604;  Pleasants  v.  Fant,  22  Wall.  121. 

Judgment  reversed,  and  the  cause  re- 
manded, with  directions  to  issue  a  reaire 
(Jti  novo,  and  to  proceed  in  conformity 
with  this  opinion. 

Bowen  v.  Railroad  Co.,  59  Conn.  364,  21  Atl.  Rep. 
Rep.  246;  Murphy  v.  Deane,  101  Mass.  455;  RaD- 
Gity  V.  Fischer,  HI  Pa.  St.  9,  2  AtL  Rep.  87;  Lent 


2.  Negligence  of  plaintiff  remote. 


(10  Mees.  &  W.  545.) 

Daa'iks  v.  M.\x.\' 

(Court  of  Exchequer.     Nov.  4,  1842.) 

1.  Negligence  —  Remote  and  Proximate  Cause 

OF  Injury. 
In  an  action  for  injuries  alleged  to  have  been 
caused  by  defendant's  negligence,  the  negligence 
of  plaintiff  which  will  preclude  his  recovery 
must  be  such  as  that  he  could,  by  ordinary-  care, 
have  avoided  the  consequence  of  defendant's 
negligence. 

2.  Same. 

Plaintiff  fettered  the  forefeet  of  his  ass,  and 
turned  it  into  the  highwaj-  to  graze,  and  defend- 
ant's servant,  negligently  driving  along  the  high- 
way, ran  over  it.  Held,  that  the  court  properly 
charged  that,  if  the  proximate  cause  of  the  in- 
jury was  attributable  to  the  want  of  proper  care 
on  the  part  of  defendant's  servant,  the  plaintiff 
could  recover,  though  plaintiff's  act  in  fettering 
the  ass  so  that  he  could  not  get  out  of  the  way  of 
carriages,  and  turning  him  in  the  highway,  was 
illegal. 

Motion  for  new  trial 

Action  by  Da  vies  against  Mann  to  re- 
cover damages  for  the  negligent  killing  of 
plaintiff's  ass.  On  the  trial  there  was  ev- 
idence to  show  that  plaintiff  fettered  the 
foi-efeet  of  the  ass,  and  turned  him  into 
the  highway  t<  graze,  and  that  defend- 
ant's wagon,  with  a  team  of  three  horses 
in  charge  oi  his  servant,  came  down  a 
slight  des<'ent  at  a  rapid  pace,  and  ran 
over  the  ass;  that  the  road  was  eight 
yards  wide;  and  that  thedriver  was  some 
little  distance  behind  the  horses.  The 
court,  Erskixe,  J.,  charged  the  jur3'  that, 
though  the  act  of  the  i>laintiff,  in  having 
the  ass  on  the  highway,  so  fettered  as  to 
prevent  his  getting  out  of  the  way  of  car- 
riages traveling  along  it,  might  be  illegal, 
still,  if  the  proximate  cause  of  the  injury 
was  attributable  to  the  want  of  proper 
conduct  on  the  part  of  the  driver  of  the 
wagon,  the  action  was  maintainable 
CHASE — 15 


againstthe  defendant,  and,  if  they  thought 
the  accident  might  have  been  avoided  by 
the  exercise  of  ordinary  care  on  the  part 
of  the  driver,  to  find  for  plaintiff.  The 
jury  found  for  plaintiff,  damages  40  b. 
Defendant  moved  for  a  new  ti-ial. 
Mr.  Godson,  for  the  motion. 

Abixger,  C.  B.  I  am  of  opinion  that 
there  ought  to  be  no  rule  in  this  case. 
The  defendant  has  not  denied  that  the  ass 
was  lawfully  in  the  highway,  and  there- 
fore we  must  assume  it  to  have  bpen  law- 
fully there;  but,  even  were  it  otherwise,  it 
would  have  made  no  difference;  for,  as 
the  defendant  might,  by  proper  care,  have 
avoided  injuring  the  animal,  and  did  not, 
he  is  liable  for  the  consequences  of  his  neg- 
ligence, though  the  animal  may  have  been 
improperly  there. 

Parke.  B.    This  case  was  fully  consid- 
ered by  this  court  in  the  case  of  Bridge  v. 
Railway  Co.,  3   Mees.   &  W.   246,  where,  it 
appears  tome,  the  correct  rule  is  laid  down 
concerning    negligence,   namely,    that  the 
negligence  which  is  to   preclude  a  plaintiff 
from  recovei'ing  in  an  action  of  this  nature 
must   be  such   as  that   he  could,  by  ordi- 
j  nary  car?,  have  avoided   the  consequence 
[  of  the  defendant's  negligence.     I  am   re- 
j  ported  to  have  said  in  that  case,  and  I  be- 
lieve quite  correctly,  that  "  the  rule  of  law 
j  is  laid  down    with   perfect  correctness  in 
jthe    case    of    Butterfield  v.   Forrester,   II 
East,  60,  that,   although  there  may  have 
;  been  negligence  on  the  part  of  the   plain- 
j  tiff,  yet  unless  he  might,  by  the  exercise  of 
I  ordinary  care,   have  avoided    the  conse- 
'  quences  of  the  defendant's  negligence,  he  is 
'  entitled  to  recover;  if  by  ordinary  care  he 
might  have  avoided   them,  he  Is   the  au- 
thor of  his   own  wrong.  "    In  that  case  of 
Bridge   v.  Railway  Co.  there  was   a   plea 


226 


LAW  OF  TORTS. 


imputing  negligence  on  both  sides;  here 
it  is  otherwise,  and  the  judge  simply  told 
the  jury  that  the  mere  fact  of  negligenceou 
the  part  of  the  plaintiff  in  leaving  his  don- 
key on  the  public  highway  was  no  answer 
to  the  acti(jn,  unless  the  donkey's  being 
there  was  the  immediate  cause  of  the  in- 
jury; and  that,  if  they  were  of  opinion 
that  it  was  caused  by  the  fault  of  the  de- 
fendant's servant  in  driving  too  fast,  or, 
which  is  the  same  thing,  at  a  smartish 
pace,  the  mere  fact  of  putting  the  ass  upon 
the  road  would  not  bar  the  plaintiff  of  his 


action.  All  that  is  perfectly  correct;  for 
although  the  ass  may  have  been  wrong- 
fully there,  still  the  defendant  was  bound 
to  go  along  the  road  at  such  a  pace  as 
would  be  likely  to  prevent  mischief.  Were 
this  not  so,  a  man  might  justify  the  driv- 
ing over  goods  left  on  a  public  highway, 
or  even  over  a  man  b'ing  asleep  there,  or 
the  purposely  running  against  a  carriage 
going  on  the  wrong  side  of  the  road. 

Gdrney  and  Rolfe,  BB,,  concurred. 
Rule  refused. 


(See,  also,  Radley  v.  Railroad  Co.,  L.  R.  1  A.pp.  Cas.  754r;  Coasting  Co.  v.  Tolson,  139  U.  S.  551,  11 
Sup.  Ct.  Rep.  653;  Dun  v.  Railroad  Co.,  78  Va.  645;  Isbell  v.  Railroad  Co.,  27  Conn.  393;  Railroad  Co. 
v.  Mulligan,  45  Md.  4S6;  State  v.  Railroad,  53  N.  H.  528;  Harlan  v.  Railroad  Co.,  65  Mo.  22;  Austin  v. 
Steam-Boat  Co.,  43  N.  Y.  75.) 


3.  Contributory  negligence  of  children  sui  juris. 


(39  Minn.  164,  89  N.  W.  Rep.  402.) 
Twist  t.Winoxa  &  St.  P.  R.  Co. 

(Supreme  Court  of  Minnesota.    Aug.  30, 1888.) 

1.  Negligence — CoyTRiBUTORT—  Children. 

A  child  of  such  tender  years  as  to  be  incapable 
of  exercising  any  judgment  or  discretion  cannot 
be  charged  with  contributory  negligence.  But 
where  a  child  has  attained  such  an  age  as  to  be 
capable  of  exercising  his  judgment  and  discre- 
tion, he  is  responsible  for  the  exercise  of  such  a 
degree  of  care  and  vigilance  as  might  reasonably 
be  expected  of  one  of  his  age  and  mental  capacity. 

2.  Same — Plating  about  Railroad  Turn-Table. 
A  boy  of  tfcie  age   of   nearly  1Q14  years,  and  of 

average  intelligence,  who  had  been  frequently  in 
the  vicinity  of  a  railway  turn-table,  and  had  a 
general  knowledge  of  its  structure  and  opera- 
tion, and  had  been  repeatedly  warned  by  his 
father  that  it  was  dangerous  to  play  upon  it,  and 
told  not  to  do  so,  and  knew  that  the  railway 
company  prohibited  children  from  playing  on  the 
table,  and  also  knew  that  he  had  no  right  to  play 
upon  it,  and  that  it  was  dangerous  to  do  so,  en- 
gaged with  other  boys  in  swinging  upon  it  while 
in  motion,  and  was  injui-ed  by  his  foot  being 
caught  between  the  arm  of  the  table  and  the  sta- 
tionary abutments.  Held,  that  the  conduct  of 
the  boy  amounted  to  contributory  negligence,  al- 
though he  might  not  have  been  of  sufficient  age 
and  discretion  to  understand  and  comprehend  the 
full  extent  of  the  danger  to  which  his  conduct 
exposed  him. 

Appeal  from  district  court,  Nicollet  coun- 
ty ;  Webbkr,  Judge. 

Action  by  Frank  Twist  against  the  Wi- 
nona &  St.  Peter  Railroad  Company  to 
recover  damages  for  injuries  sustained  by 
plaintiff's  minor  child.  Verne  Twist,  while 
upon  defendant's  turn-table.  Verdict  for 
plaintiff  fen-  $5,000.  A  motion  by  defend- 
ant for  judgment  on  the  special  findings 
or  for  a  new  trial  was  overruled,  and  it  ap- 
pealed. 

Wilson  &  Bowers,  for  Winona  &  St.  Pe- 
ter Railroad  Company,  appellant.  Lusk 
&  Buun,  for  Frank  Twist,  respondent. 

Mitchell,  J.  This  action  was  brought 
to  recover  damages  for  personal  Injuries 
sustained  by  plaintiff's  son  while  playing 
on  one  of  defendant's  turn-tables.  The 
table  was  situated  upon  defendant's  own 
premises,  in  the  suburbs  of  St.  Peter, some 
five  or  six  hundred  feet  from  the  depot. 
The  premises  were  uninclosed,  but  the  ta- 
ble was  not  so  near  any  high  way  or  street 
as  to  interfere  with   the  safety  or  conven- 


ience of  public  travel.  It  was  what  la 
called  a  "skeleton"  turn-table,  of  the  kind 
in  general  use  by  railway's  except  in  round- 
houses. In  accordance  with  the  general 
usage,  it  was  not  locked,  but  was  supplied 
with  latches  of  the  usual  kind  to  keep  it 
in  place  when  in  use.  These  latches 
weighed  four  or  five  pounds  each,  but 
could  be  lifted  out  of  their  sockets,  and  the 
table  set  in  motion,  by  comparatively 
small  children.  Boys  had  been  frequently 
in  the  habit  of  setting  the  table  in  motion, 
and  playing  on  it,  and  during  the  15  or  20 
3'ears  it  had  been  there  three  boys  had  been 
injured  by  it,  all  of  which  facts  were 
known  to  the  defendant.  The  agents  of 
the  railway  company  had  frequently  for- 
bidden children  from  playing  on  the  table, 
and  were  in  the  habit  of  driving  them 
away  when  they  saw  them  doing  so.  It 
does  not  appear  but  that  some  way  might 
be  devised  of  keeping  such  turn-tables 
locked  when  not  in  us3,  but  the  evidence 
does  show  that  no  such  contrivance  has 
3'et  been  devised,  and  that  the  general  cus- 
tom is  to  leave  them  unlocked  and  merely 
held  in  place  by  latches,  as  this  (me  was. 
Plaintiff's  son,  a  boy  of  the  age  of  10 
years  and  4  mouths,  went,  in  company 
with  several  other  l)oys,  into  the  vicinity 
of  the  table,  and,  after  the  others  had  set 
the  table  in  motion,  he  also  joined  in 
swinging  on  it,  and  sustained  the  injuries 
complained  of,  in  the  usual  way,  by  his 
foot  being  caught  between  the  anus  of 
the  table  and  the  stationary  abutments. 
The  negligence  charged  against  the  de- 
fendant is  in  not  locking  the  table,  so  that 
it  could  not  be  set  in  motion  b^'  children. 

The  rule  invoked  by  plaintiff  is  that  laid 
down  by  this  court  in  Keffe  v.  Railroad 
Co.,  21  Minn.  207,  and  by  the  supreme  court 
of  the  United  States  in  what  may  be  termed 
the  pioneer  "turn-table  case, "  (Railroad 
Co.  V.  Stout,  17  Wall.  657.)  in  which  it  is 
held  that  the  owner  of  dangerous  machin- 
ery, who  leaves  it  in  an  open  place,  though 
on  his  own  land,  where  he  has  reason  to 
believe  that  young  children  will  he  at- 
tracted to  play  with  it,  and  be  injured,  is 
bound  to  use  reasonable  care  to  protect 
such  children  from  the  danger  to  which 
they  are  thus  exposed.  The  line  of  argu- 
ment adopted  in  the  Keffe  Case,  in  sup- 
port of  this   rule,  is  that  such  machinery. 


NEGLIGENCE. 


227 


being  attractive  to  jounfr  cliildren,  pre- 
sents to  tnem  a  strong  temptation  to  plaj' 
with  it,  anfl  thus  allures  them  into  a  dan- 
ger whose  nature  and  extent  they,  being 
without  judgment  and  discretion,  can  nei- 
ther apprehend  nor  appreciate,  and 
against  which  they  cannot  i)rotect  them- 
selves; that  such  children  may  be  said  to 
be  induced  by  the  owner's  own  conduct  to 
come  upon  the  premises;  that  what  an 
express  invitation  is  to  an  ailult,  an  at- 
tractive plaything  is  to  a  child  of  tender 
years;  that  as  to  them  such  machinery 
is  a  hidden  danger,— a  trap.  Much  of  the 
briefs  of  counsel,  especially  of  that  of  de- 
fendant, is  devoted  to  the  consideration 
of  the  doctrine  of  these  so-called  "turn-ta- 
ble cases, "and  of  the  question  of  the  dut\', 
if  any,  which  the  owner  of  dangerous  ma- 
chinery or  other  articles  situate  on  his 
own  premises  owes  to  intermeddling  or 
trespassing  children.  The  doctrine  of 
these  cases  has  been  questionpd  by  some 
courts,  and  repudiated  by  others,  who 
hold  that  a  land-owner  is  not  bound  to 
take  active  measures  to  insure  the  safety 
of  intruders,  even  childx-en,  nor  is  he  liable 
for  any  injury  resulting  from  the  lawful 
use  of  his  premises  to  one  entering  with- 
out right;  that  to  intruders  or  trespassers 
the  land-owner  owes  no  duty;  and  where 
there  is  no  duty  to  perform  there  can  be 
no  negligence.  Frost  v.  Railroad  Co.,  (X. 
H.)  9  Atl.  Rep.  790.  Applied  to  one  of 
sufficient  mental  capacity  to  be  a  con- 
scious trespasser,  this  is  undoubtedly  a 
sound  rule;  but  if  applied  to  children  of 
tender  years,  strictly  noa  sui  Juris,  it 
would  seem  har.sh  and  inhuman.  Proper- 
ly qualitied  and  limited  in  its  application, 
the  doctrine  of  the  Keffe  Case  is,  in  our 
judgment,  in  accordance  with  both  reason 
and  the  dictates  of  humanity.  Rut  some 
of  the  cases  have  undoubtedly  gone  t(;o 
far.  By  adopting  an  extreme  or  extraor- 
dinary standard  of  dut^'  on  the  part  of 
the  land-owner  on  tht^  one  side,  and  on 
the  other  side  by  attributing  the  conduct 
of  all  children  to  their  childish  instincts  so 
as  to  exempt  them  from  the  charge  of  con- 
tributory negligence,  regardless  of  age  or 
mental  capacity,  it  is  obvious  that  the 
rule  of  the  Keffe  and  similar  cases  is  capa- 
ble of  indefinite  and  unbounded  applica- 
bility. To  the  irrepressible  spirit  of  curi- 
osity and  intermeddling  of  the  average 
boy  there  is  no  limit  to  the  objects  which 
can  be  made  attractive  playthings.  In 
the  exercise  of  his  j'outhful  ingenuity,  he 
can  make  a  plaything  out  of  almost  any- 
thing, and  then  so  use  it  as  to  expose  him- 
self to  danger.  If  all  this  is  to  be  charged 
to  natural  childish  instincts,  and  the  own- 
ers of  property  are  to  be  required  to  antici- 
pate and  guard  against  it,  the  result 
would  be  that  it  would  be  unsafe  for  a 
man  to  own  property,  and  the  duty  of  the 
protection  of  children  would  be  charged 
upon  every  member  of  the  community 
except  the  parents  of  the  children  them- 
selves. This  court  itself,  if  it  has  not 
modified  the  Keffe  Case,  has  at  least  indi- 
cated that  thedoctrine  which  it  announces 
is  not  to  be  given  any  such  extreme  and 
unlimited  application.  Kolsti  v.  Railroad 
Co..  :^■2  Minn.  1.33,  19  N.  W.  Rep.  6.»:  Em- 
erson  v.  Peteler,  35  Minn.   481,   29  N.  \V. 


1  Rep.  311.  It  is  unnecessary,  however,  to 
determine  whether,  upon  the  facts  in  the 
present  case,  the  finding  of  negligence  on 
part  of  the  defendant  can  be  sustained,  in- 
asmuch as  it  is  clearly  established  by  both 
the  evidence  and  the  special  findings  of 
fact  that  the  l)oy  himself  was  guilty  of 
contributory  negligeuce  The  law  very 
properly  holds  that  a  child  of  such  tender 
years  as  to  be  incapable  of  exercising 
judgment  and  discretion  cannot  becharged 
with  contributory  negligence;  but  this 
principle  cannot  be  applied  as  a  rule  of  law 
to  all  children,  without  regard  to  their 
age  or  mental  capacity.  Children  may  be 
liable  for  their  torts  or  punished  for  their 
crimes,  and  they  may  be  guilty  of  negli- 
gence as  well  as  adults.  Tiie  law  very  hu- 
manely does  not  require  the  same  degree 
of  care  on  the  part  of  a  child  as  of  a  per- 
son of  mature  years,  but  he  is  re.sponsible 
for  the  exercise  of  such  care  and  vigilance 
as  may  reasonably  be  expected  of  one  of 
his  age  and  capacity;  and  the  want  of 
that  degree  of  care  is  negligence.  The 
fact  that  he  may  not  have  the  mature 
judgment  of  an  adult  will  not  excuse  a 
child  from  exercising  the  degree  of  judg- 
ment and  discretion  which  he  possesses, 
or  for  disregarding  the  warnings  and  or- 
dprs  of  his  seniors,  and  heedlessly  rushing 
into  known  danger.  In  theStoutCa.se,  the 
defendant  made  an  express  disclaimer  of 
anj'  contributory  negligence  on  thepart  of 
the  plaintiff.  In  the  Keffe  Case,  which  was 
disposed  of  on  the  pleadings,  tliis  court 
said:  "It  was  not  urged  upon  the  argu- 
ment that  plaintiff  was  guilty  of  contrib- 
utory negligence,  and  we  have  assumed 
that  he  exercised,  as  he  was  bound  to  do, 
such  reasonable  care  as  a  child  of  his  age 
and  understanding  was  capable  of  using." 
And  as  was  remarked  in  the  Keffe  Case, 
in  the  cases  cited  in  support  of  these 
"turn-table  cases,"  the  principal  ques- 
tion discu.ssed  is  not  whether  the  defend- 
ant owed  the  plaintiff  the  duty  of  care, 
but  whether  the  defendant  was  absolved 
from  liability  for  breach  of  duty  by  reason 
of  the  fact  that  the  plaintiff  was  a  tres- 
passer, who  by  his  own  act  contributed 
to  the  injury;  and  the  distinction  is  not 
sharply  drawn  between  the  effect  of  plain- 
tiff's trespass  as  a  bar  to  his  right  to  re- 
quire care,  and  the  plaintiff's  contribu- 
tory negligence  as  a  bar  to  his  right  to 
recover  for  the  defendant's  failure  to  exer- 

j  cise  such  care  as  it  was  his  duty  to  use. 
But  the  authorities  are  all  one  way,  and 
to  the  effect  that  even  a  child  is  bound  to 

]  use  such  reasonable  care  as  one  of  his 
age  and    mental    capacity  is  capable   of 

{using;  and  his  failure  to  do  so  is  negli- 
gence. Wendell  v.  Railroad  Co.,  91  N.  Y. 
420;  Messenger   v.  Dennie,  141    Mass.  .335,  5 

'  N.  E.  Rep.  2S3;  Railwav  Co.  v.  Einiuger, 
114  111.79;  Brown  v.  Railroad  Co.,  58  Me. 
384;  Achtenhagen  v.  Citv  of  Watertown, 
18  Wis.  331;  Masser  v.  Railroad  Co.,  68 
Iowa,  602.  27  N.  W.  Rep.  776;  Murray  v. 
Railroad  Co.,  93  N.  C.  92;  Ludwig  v.  Pills- 
bury,  35  Minn.  256,  28  N.  W.  Rep.  505;  Rail- 
road C(*.  V.  Gladmon,  15  Wall.  401;  Gilles- 
pie V.  McGowan,  100  Pa.  St.  144. 

The  evidence  in  the  present  case  shows 
without  conflict  substantially  the  follow- 
ing facts:    The  boy  was  nearly  lOj^  years 


228 


LAW  OF  TORTS. 


old,  and  of  at  least  average  intelligence. 
He  had  been  at  school  since  he  was  H  or  7 
years  old.  His  father  was  a  railroad 
man,  in  the  eiuplo3"ment  of  the  defendant 
around  the  yard  and  depot,  and  the  boy 
had  been  frequently  around  the  railroad 
grounds  and  the  turn-table  with  his  father. 
He  was  evidently  familiar,  at  least  in  a 
general  way,  with  the  working  of  the  turn- 
table, and  the  use  of  the  latches.  His 
father  had  repeatedly  warned  him  against 
going  on  the  turn-table,  and  told  him  of  the 
danger,  and  that  he  must  not  go  on  it. 
He  evidently  had  quite  a  lively  senseof  the 
danger  of  playing  on  the  table,  and  of  the 
manner  in  which  accidents  were  liable  to 
occur  to  those  swinging  on  it.  The  boy 
himself  admits  that  he  knew  there  was 
g"eat  danger  of  getting  hurt  on  it.  He 
knew  that  playing  on  it  was  forbidden  by 
the  railroad  company,  and  that  if  its 
agents  saw  children  doing  so  they  would 
drive  them  off.  It  is  suggested  that  his 
motive  in  going  to  the  table  was  to  try 
to  induce  the  other  boys  to  get  off  lest 
they  might  get  hurt.  But  if  he  had  such  a 
realizing  sense  of  their  danger,  so  much 
the  more  inexcusable  was  it  for  him  to  go 
and  do  precisely  what  he  knew  was  ex- 
posing them  to  danger.  Upon  this  state 
of  the  evidence  the  jury,  in  addition  to 
their  general  verdict,  found  the  following 
facts  in  answer  to  the  following  questions 
submitted  to  them:  "First.  Did  Verne 
Twist,  when  he  went  to  play  on  this  turn- 
table, on  the  day  when  he  was  hurt,  know 
that  it  was  dangerous'  Answer.  Yes, 
Second.  Did  Verne  Twist,  when  he  went 
to  play  on  this  turn-table,  on  the  day 
when  he  was  hurt,  know  that  he  had  no 
right  to  go  there,  and  that  it  was  danger- 
ous to  play  on  the  turn  table?  A.  Yes. 
Third.  Was  Verne  Twist,  when  he  went 
to  play  on  this  turn-table,  on  the  day 
when  he  was  hurt,  of  sufficient  age  and 
discretion  to  understand  and  comprehend 
the  danger  he  subjected   himself  to?    A. 


No. "  These  special  findings  must,  if  possi- 
ble, be  so  construed  as  to  be  consistent 
with  each  other,  and  also  supportable  by 
the  evidence.  If  the  third  finding  means 
that  the  boy  was  of  such  tender  years  as 
to  beincapableof  exercising  anyjudgment 
and  discretion,  or  of  understanding  that 
his  acts  exposed  him  to  danger,  it  would 
be  inconsistent  with  the  other  findings, 
and  wholly  unsupported  by  the  evidence. 
In  the  light  of  the  testimony,  and  taken 
in  connection  with  the  previous  findings, 
all  that  it  can  mean  is  that  while  the  boy 
knew  that  he  had  no  rigiit  to  play  on  the 
turn-table,  and  that  it  was  dangerous  to 
do  so,  yet  he  did  not  fully  understand  or 
appreciate  the  extent  of  the  danger  in  all 
its  possibilities.  But  this  may  be  said  of 
almost  every  case  of  contributory  negli- 
gence, even  on  the  part  of  adults.  No  one 
voluntarily  and  unnecessarily  enters  a 
danger  which  he  knows  to  exist  without 
expecting  to  escape  it.  In  all  cases  of  con- 
scious self-exposurethereis  a  failure  to  real- 
ize the  extent  or  degree  of  the  risk,  but 
the  act  is  none  the  less  contributorj'  negli- 
gence, if  the  party  fails  to  exercise  ordi- 
nary care.  In  the  present  case,  while  the 
boy  did  not  realize  the  extent  of  the  dan- 
ger as  fully  as  would  an  adult,  yet  he 
knew  that  he  had  no  right  to  go  upon  the 
turn-table;  that  his  father  had  warned 
him  that  it  was  dangerous,  and  he  himself 
knew  that  it  was  dangerous.  Yet  he 
goes,  a  conscious  trespasser,  and  does  the 
forbidden  and  dangerous  act.  While  we 
are  not  disposed  to  adopt  a  severe  rule 
bj'  which  to  judge  the  conduct  of  child- 
hood, yet  such  conduct  on  the  part  of  an  in- 
telligent boy  of  nearly  10)^  years  amounts 
to  contributory  negligence,  and  cannot  be 
excused  on  the  plea  of  childish  instincts. 
We  are  of  opinion  that  upon  the  special 
findings  the  defendant  was  entitled  to 
judgment.  The  cause  is  remanded,  with 
directions  to  the  district  court  to  enter 
judgment  for  defendant. 


(See,  also,  Thurber  v.  Railroad  Co.,  60  N.  Y.  326;  Stone  v.  Railroad  Co.,  115  N.  Y.  104,  21  N.  E, 
Rep.  712;  RoUing-Mill  Co.  v.  Corrigan,  Ohio  Sup.,  20  N.  E.  Rep.  466;  Beckham  v.  Hillier,47  N.  J.  Law, 
12;  Collins  v.  Railroad  Co.,  142  Mass.  301,  7  N.  E.  Rep.  856;  Railroad  Co.  v.  Hassard,  75  Pa.  St.  367; 
Railroad  Co.  v.  McDonnell,  43  Md.  534;  Railroad  Co.  v.  Delaney,  82  111.  198.) 


4.  Imputation  of  negligence  to  children  non  sni  juris. 
— Different  theories. 


(21  Wend.  615.) 
Haktfield  v.  Roper  et  ah 

(Supreme  Court  of  New  York.    Oct.  Term,  1839.) 

1.  Negligence  —  Injuries  to  Child  —  Imputed 

Negligence. 
An  infant  of  tender  years    is  chargeable  with 
the    negligence    of    the    person   having  him   in 
charge. 

2.  S.\ME — Straying  upon  Highway. 

An  infant  permitted  by  his  parents  having  him 
in  charge  to  wander  on  the  highway  cannot  re- 
cover for  injuries  caused  by  being  run  over  by  a 
traveler  thereon,  unless  the  injuries  were  volun- 
tarily inflicted  by,  or  were  the  result  of  gross 
carelessness  of,  the  traveler. 

Motion  for  new  trial. 

Action  by  William  FTartfield,  by  his 
next  friend,  Gabriel  Hartfield,  against 
Roper  and  Newell  to   recover  for  personal 


injuries.  It  appeared  at  the  trial  that  the 
plaintiff,  a  child  about  two  years  old,  was 
standing  or  sitting  in  the  beaten  track  of 
a  highway  with  no  one  near  him,  along 
which  highway  defendants  were  driving 
with  a  sleigh  and  horses,  and  that  plain- 
tiff was  not  seen  by  any  persons  in  the 
sleigh  until  the  horses  were  right  on  him, 
when  they  were  checked  and  backed,  be- 
fore the  sleigh  ran  over  him,  and  that  he 
received  severe  injuries  to  his  arm.  At  the 
time  of  the  accident  the  horses  were  trot- 
ting slowly,  and  had  cros.sed  a  bridge  just 
beyond  which  was  the  cliild.  Defendants 
moved  for  a  nonsuit,  which  was  refused. 
Verdict  for  plaintiff.  Defendants  moved 
for  a  new  trial. 

J.  A.  Spencer,  for  defendants.    W.  Tracy 
and  W.  C.  Noyes,  for  plaintiff. 


NEGLIGENCE. 


229 


CowEX,  J.  The  injury  to  this  child  was 
doubtless  a  very  serious  misfortune  to 
him.  But  I  have  been  utterly  unable  to 
<;ollect,  from  the  evidence,  anything  by 
whii-h  the  jury  were  authorized  to  impute 
such  carelessness  as  rendered  these  defend- 
ants responsible.  It  is  true,  they  migiit 
have  seen  the  child  from  the  turn  of  the 
road  in  descending,  had  they  looked  so  far 
ahead;  but  something  must  he  allowed 
for  their  attention  to  the  management  of 
the  horses  and  their  own  safety  in  de- 
scending the  hill  to  a  bridge.  So  unob- 
serving  were  they  in  fact  that  Mrs.  Lewis, 
who  sat  in  the  rear  uf  the  sleigh,  on  the 
left  side,  and  therefore  in  the  best  position 
of  the  three  to  overlook  the  road  in  its 
full  extent  as  far  as  the  place  where  the 
child  was,  did  not  discern  him.  It  was 
somewhat  severe,  in  a  case  like  this,  to 
allow  testimonj' of  Newell's  ability  to  pay, 
though  it  was  not  objected  to.  It  seems 
to  imply  that  he  had  been  so  brutal  as  si- 
lently to  allow  Roper's  going  on,  and  en- 
<langering  the  child's  life,  after  he  [Newell] 
had  discovered  it  to  be  in  the  road.  But 
perhaps  no  objection  can  now  be  heard 
to  that  evidence  having  been  received, 
because  it  was  not  made  at  the  trial. 

No  doubt  the  action  was  properlj' 
brought  in  the  name  of  the  child,  nor  is 
thei'e  anv  ol)iection  to  its  form  since  the 
statute.  "2  Rev.  St.  (2d  Ed.)  p.  4.5(5,  §  16. 
Nor  could  the  father  have  brought  an  ac- 
tion for  loss  of  service,  in  respect  to  so 
small  a  child,  according  to  the  English 
case  of  Hall  v.  Hollander,  4  Barn.&  C.  (iliO, 
though  I  should  think  it  tiuite  question- 
able Avhether  that  case  can  be  considered 
as  law  here.  If  the  defendants  were,  in 
truth  so  reckless  of  the  child's  safety  as 
to  run  over  it  in  the  way  described,  after 
knowing  it  to  be  in  tlie  road,  the  verdict 
is  none  too  large.  But  such  trifling  with 
human  life  ought  not  to  be  presumed; 
and  there  was  no  proof  of  it,  either  di- 
rect or  circumstantial.  This  is  not  a  case, 
however,  for  interfering  upon  the  ground 
of  excessive  damages.  The  onlj'  question 
which  seems  to  be  o[jen  for  our  considera- 
tion is  that  of  negligence.  This  respects 
both  j)arties.  It  is  quite  necessary  to 
drive  at  a  moderate  pace,  and  look  out 
against  accidents  to  children  and  others, 
in  a  populous  village  or  city.  See  McAl 
lister  V.  Hammond,  6  Cow.  342,  and  per 
Lawrk.nce,  J.,  in  Leame  v.  Braj',  3  East, 
597.  But  this  accident  happened  in  the 
country,  where  was  a  solitary  house.  A 
child  belonging  to  it  happened  to  be  in  the 
road,  a  thing  most  imprudently  allowed 
by  its  parents,  and  what  could  have  been 
easily  prevented  b3'  ordinary  care.  Trav- 
elers are  not  prepared  for  such  things. 
They  therefore  trot  their  horses.  They 
are  warrantably  inattentive  to  small  ob- 
jects in  the  road,  which  they  may  be  in- 
capable of  seeing,  in  the  course  of  a  drive 
for  miles  througli  the  country  among  a 
sparse  poi^ulation.  To  keep  a  constant 
lookout  would  be  more  than  a  driver 
could  do,  even  if  he  were  continually 
standing  and  driving  on  a  walk.  Yet  to 
this  the  matter  must  come,  if  he  is  to  take 
all  the  responsibility.  The  roads  would 
thus  b.econie  of  very  little  use  in  the  line 
("or  which  they  were  principally  intended. 


It  seems  to  me  that  the  defendants  exer- 
cised all  the  care  which,  in  the  nature  of 
this  case,  the  law  required.  If  so,  it  is  a 
case  of  mere  unavoidable  accident,  for 
which  they  are  not  liable.  Dygert  v. 
Bradley,  8  Wend.  460,  472,  473;  Clark  v. 
Foot,  8  Johns.  329;  Panton  v.  Holland, 
17  Johns.  92. 

Was  the  plaintiff  guilty  of  negligence? 
His  counsel  seemed  to  think  he  made  a 
complete  exception  to  the  general  rule 
demanding  care  on  his  part,  b^'  reason  of 
his  extreme  infancy.  Is  this  indeed  so? 
A  snow  path  in  the  public  highway'  is 
among  the  last  ijlaces  in  this  country  to 
which  such  a  small  child  should  be  al- 
lowed to  resort,  unattended  by  any  one  of 
suitable  age  and  discretion.  The  custody 
of  such  a  child  is  confided  by  law  to  its 
parents,  or  to  others  standing  in  their 
place;  and  it  is  absurd  to  imagine  that  it 
could  be  exposed,  in  the  road,  as  this  child 
was,  without  gross  carelessness.  It  is  the 
extreme  of  folly  even  to  turn  domestic 
animals  upon  the  common  highway.  To 
S  allow  small  children  to  resort  there  alone 
is  a  criminal  neglect.  It  is  true  that  this 
confers  no  right  upon  travelers  to  com- 
mit a  voluntary  injury  upon  either,  nor 
does  it  warrant  gross  neglect;  but  it 
seems  to  me  that  to  make  them  liable  for 
anything  short  of  that  would  be  contra- 
ry to  law.  The  child  has  a  right  to  the 
road  for  the  purpose  of  travel,  attended 
by  the  proper  escort.  But  at  the  tender 
age  of  two  or  three  years,  and  even  more, 
the  infant  cannot  personally  exercise  that 
degree  of  discretion  which  becomes  in- 
stinctive at  an  advanced  age,  and  for 
which  the  law  must  make  him  responsi- 
ble, through  others,  if  the  doctrine  of  mut- 
ual care  between  the  parties  using  the 
road  is  to  be  enforced  at  all  in  his  case. 
It  is  perfectly  well  settled  that,  if  the  par- 
ty injured  by  a  collision  on  the  highway 
has  drawn  the  mischief  upon  himself  by 
his  own  neglect,  he  is  not  entitlerl  to  an 
action,  even  though  he  be  lawfully  in  the 
highwa3'^  pursuing  his  travels,  (Rathbun 
V.  Payne,  19  Wend.  399;  Burckle  v.  Dock 
Co.,  2  Hall,  151  ;)  which  can  scarcely  be 
said  of  a  toppling  infant,  suffered  by  his 
guardians  to  be  there,  either  as  a  traveler 
or  for  the  purpose  of  pursuing  his  sports. 
The  application  may  be  harsh  when  made 
to  small  children,  as  they  are  known  to 
have  no  personal  discretion.  Common 
humanity  is  alive  to  their  protection; 
but  they  are  not,  therefore,  exempt  from 
the  legal  rule  when  they  bring  an  action 
for  redress;  and  there  is  no  other  way  of 
enforcing  it,  except  by  requiring  due  care 
at  the  hands  of  those  to  whom  the  law 
atid  the  necessity  of  the  case  has  delegat- 
ed the  exercise  of  discretion.  An  infant  is 
not  sui  Juris.  He  belongs  to  another,  to 
whom  discretion  in  the  care  of  his  per- 
son is  exclusively  confided.  That  person 
is  keeper  and  agent  for  this  purpose;  and, 
in  respect  to  third  persons,  his  act  must 
be  deemed  that  of  the  infant;  his  neglect, 
the  infant's  neglect.  Suppose  a  hopeless 
lunatic,  suffered  to  stray  by  his  commit- 
tee, lying  in  the  road  like  a  log,  shall 
the  traveler  whose  sleigh  unfortunately 
strikes  him  be  made  amenable  in  dam- 
ages?    The   neglect   uf   the  committee  to 


230 


LAW  OF  TORTS. 


whom  his  custody  is  confided  shall  be  Im- 
puted to  him.  It  is  a  mistake  to  suppose 
that  because  the  party  injured  Is  incapa- 
ble of  personal  discretion  he  is  therefore 
above  all  law.  An  infant  or  lunatic  is  li- 
able personally  for  wrongs  which  he  com- 
mits against  the  pers<ni  and  property  of 
others.  Bullock  v.  Babcock,  3  AVend.  391, 
394.  And.  when  he  complains  of  wrongs 
to  himself,  the  defendant  has  a  right  to 
insist  that  he  should  not  have  been  the 
heedless  instrument  of  his  own  injury. 
He  cannot,  more  than  any  other,  make  a 
profit  of  his  own  wrong.  Volenti  non 
St  injuria.  If  his  proper  agent  and  guard- 
ian has  suffered  him  to  incur  mischief,  it  is 
much  more  fit  that  he  should  look  for  re- 
dress to  that  guardian  than  that  the  lat- 
ter should  negligently  alhjw  his  ward  to 
be  in  the  way  of  travelers,  and  then  har- 
ass them  in  coui'ts  of  justice,  recovering 
heavy  verdicts  for  his  own  misconduct. 
The  counsel  for  the  plaintiff  probably  have 
the  advantage  of  saying  that  the  neglect 
of  an  infant  has  not,  in  any  reported  case, 
ever  been  allowed  by  way  of  defense  in  an 
action  for  negligently  injuring  him.  But 
BO  far  there  is  an  equal  advantage  on  the 
other  side.  The  defense  has  not  been  de- 
nied in  any  book  of  Reports.  The  defend- 
ant has  also  another  advantage.  The 
Reports  expressly  say  that  negligence  may 
be  predicated  of  an  infant  or  lunatic.  All 
the  cases  agree  that  trespass  lies  against 
an  infant.  That  was  adjudged  in  Camp- 
bell V.  Stakes,  2  Wend.  137,  and  Bullock 
V.  Babcock,  before  cited.  And  it  is  equally 
well  settled  that  where  an  injury  is  free 
from  all  negligence,  as  if  it  arise  from  in- 
evitable accident,  there  trespass  does  not 
lie.  Weaver  v.  VVard,  Hob.  134;  Marcy, 
J.,  in  Bullock  v.  Babcock,  3  Wend.  393; 
Dygert  v.  Bradley,  before  cited. 

The  cases  maintaining  trespass  against 
an  infant,  therefore,  imply  that  he  may  be 
guilty  of  negligence.  Trover  will  also  lie 
for  a  mere  nonfeasance,  e.  ^.,  a  non-deliv- 
ery of  goods,  where  they  do  not  come  to 
the  infant's  hands  by  contract.  Law- 
rence, J.,  in  .Jennings  v.  Rundall,  8  Term 
R.  337;  Campbell  v.  Stakes,  2  Wend.  143. 
The  cases  most  favorable  to  infants  all 
agree  in  that :  and  so,  where  the  contract 
of  bailment  to  an  infant  has  expired,  it 
was  agreed  that,  on  non-delivery,  the 
owner  maj'  maintain  detinue,  replevin,  or 
trover.  Penrose  v  Curren,  3  Rawle,  351; 
and  see  per  Rogers,  J.,  Id.  354.  It  was 
said  trespass  lies  against  an  infant,  though 
only  four  years  of  age,  (25  Hen.  VI.  lift, 
per  Wangforu,)  though  this  is  put  by 
Brooke  with  a  qiisere.  Brooke,  Abr.  "Co- 
rone,  "pi.  6.  No  doubt,  however,  he  may 
bring  a  suit  at  any  age;  and,  if  that  suit 
depends  upon  a  condition  on  his  side,  he 
must  show  that  it  was  performed.  It 
was  said  in  Stowel  v.  Zouch,  Plow. 
364.  if  an  infant  lord,  who  has  title  to  en- 
ter from  mortmain,  does  not  enter  within 
the  year,  he  shall  be  bound  by  his  laches; 
"for  there  he  had  but  title  to  a  thing 
which  never  was  in  him."  To  warrant  an 
action  he  must  have  entered  within  the 
year,  and,  not  having  flone  so,  he  could 
have  no  remedy.  Several  like  instances 
are  put  in  the  same  page,  which  are  also 
collected  and  arranged  in  9  Vin.  Abr.  "En- 


fant," B  2,  pis.  7,  8,  p.  376,  of  the  octavo 
edition.  But  it  is  plain,  in  the  nature  of 
things,  that,  if  an  infant  insist  on  a  right 
of  action,  he  must  show  a  compliance  with 
the  conditions  on  which  his  right  is  to 
arise,  and  this  is  entirely  irrespective  of  his 
age.  Lands  descend  to  an  infant  of  a  year 
old,  and  he  is  bound  to  make  a  share  of 
the  partition  fence.  He  neglects  to  do  so, 
whereby  his  neighbor's  cattle  enter  and 
trespass  upon  the  land.  No  one  would 
think  of  contending  that  his  neighbor 
must  therefore  be  deprived  of  his  defense. 
The  infant  has  neglected  to  fulfill  the  con- 
dition on  which  he  could  sue,  or  his  guard- 
ian has  done  so,  which  Is  the  same  thing. 
He  might  as  well  sue  because  his  neighbor 
had  left  a  gate  on  his  own  premises  open, 
through  which  the  infant  had  crept,  and 
fallen  into  a  pit  and  hurt  himself.  The 
man  has  a  right  to  keep  his  gate  open, 
and  the  child's  parents  must  keep  him 
away.  But  one  has  no  plainer  right  to 
walk  about  his  own  premises,  and  open 
and  shut  his  own  gates,  than  he  has  to 
travel  in  the  highway'  with  his  horses.  An 
infant creei)s  into  the  track  from  your  field 
to  your  barn,  and  is  injured  by  your  driv- 
ing a  load  of  hay  along  the  path  ;  are  you 
to  be  deprived  of  all  exciise  in  an  action 
for  the  injury?  The  argument  for  this 
plaintiff  goes  quite  too  far  and  proves  too 
much.  It  was  said  that  drivers  are  boimd 
to  suppose  that  small  children  may  be  in 
the  road,  and,  as  all  the  care  lies  on  the 
side  of  the  former,  damages  follow  of 
course  for  every  injury  to  the  latter.  Sup- 
pose an  infant  suddenly  throws  himself 
in  the  way  of  a  sleigh,  a  wagon,  or  a 
railroad  car,  by  which  his  limb  is  fract- 
ured, it  may  be  said,  with  equal  force, 
he  is  incapable  of  neglect.  So  if  he  be  al- 
lowed to  travel  the  road  alone  in  the 
dark.  The  answer  to  all  this  is,  the  la  w 
has  placed  infants  in  the  hands  of  vigi- 
lant, and  generally  affectionate,  keepers, 
their  own  parents;  and  if  there  be  any 
legal  responsibility  in  damages,  it  lies  upon 
them. 

The  illustration  sought  to  be  derived 
from  the  law  in  respect  to  the  injury  of 
animals  turned  or  suffered  to  stray  into 
the  street  does  not  strike  me  as  fortunate. 
If  they  be  there  without  any  one  to  at- 
tend and  take  care  of  them,  tliat  is  a  de- 
gree of  carelessness  in  the  owner  which 
would  preclude  his  recovery  of  damages 
arising  from  mere  inattention  on  the 
side  of  the  traveler.  Indeed,  it  could  rare- 
ly be  said  that  ammals  entirely  unattend- 
ed are  lawfully  in  the  roads  or  streets  at 
all.  They  may  be  driven  along  the  road 
by  the  owner  or  his  servants;  but  if  al- 
lowed to  run  at  large  for  the  purpose  of 
grazing,  or  any  other  purpose,  entirely  un- 
attended, and  yet  travelers  are  to  be  made 
accountable  in  all  cases  of  collision,  such 
a  doctrine  might  supersede  the  use  of  the 
road,  so  far  as  comfort  or  expedition  is 
concerned.  The  mistake  lies  in  supposing 
the  injury  to  be  willful,  to  arise  from  some 
positive  act,  or  to  be  grossly  negligent. 
Such  an  injury  is  never  tolerated,  be  negli- 
gence on  the  side  of  the  party  injured  what 
it  may.  Clay  v.  Wood, 5  Esp.  44;  Rathbun 
V.  Payne,  before  cited.  But  where  it 
arises  from  mere  inadvertence  on  the  side 


NEGLIGENCE. 


231 


of  the  traveler,  he  is  always  excused  by 
the  knv  on  showing  that  there  was  equal 
or  g^reater  neglect  on  the  side  of  his  ac- 
cuser. 

It  is  impossible  to  say,  then,  that  the 
accuser  was  not  himself  the  author  of  the 
injur^^  which  he  seeks  to  father  upon  an- 
other. My  ditficulty  in  the  case  at  bar  is 
to  find  the  least  color  for  imputing  gross 
negligence,  or,  indeed,  any  degree  of  negli- 
gence, to  the  defendants.  But,  if  there 
were  any,  there  was,  I  think,  as  much  and 
more  on  the  side  of  the  plaintiff.  It  there- 
fore seems  to  nie  that  here  was  a  good  de- 
fense established  at  the  trial,  on  the 
ground  that  the  defendants  being  free  from 
gross  neglect,  and  the  plaintiff  being  guilty 
of  great  neglect  on  his  part, — indeed,  be- 
ing unoecessarili',  not  to  say  illegally,  oc- 
cupj'ing  the  road,  having  no  right  there, 
(for  he  does  not  appear  to  have  been  trav- 
eling, or  even  on  the  land  which  belonged 
to  his  family,) — the  injury  was  a  conse- 
quence of  his  own  neglect,  at  least  such 
neglect  as  the  law  must  impute  to  him 
through  others. 

Again,  I  collect  from  the  evidence  that 
Newell  had  demised  the  team  for  a  term 
of  two  years,  which  was  unexpired  at  the 
time  of  the  injury,  to  his  son-in-law  and 
CO  defendant.  Roper.  Newell  then  had  no 
control  of  the  team,  and  cannot  be  made 
liable  without  proof  of  positive  and  active 
concurrence  in  the  injury,— a  thing  for 
which  there  is  no  pretense  in  the  proof, 
and  which  implies  a  barbarous  temper, 
which  the  law  cannot  presume  in  anyone. 
He,  at  least,  should  have  been  acquitted 
by  the  jur.v.  He  neither  actually  partici- 
pated in  the  management  of  the  team  nor 
could  his  interference  have  been  legally 
efficient  to  prevent  mischief.  He  had  no 
lawful  control  of  the  horses.  Roper  was 
the  exclusive  owner  pro  liac  vice.  Tiie  ev- 
idence, at  the  time  when  the  motion  was 
made  to  allow  the  jury  to  pass  upon  the 
case  of  Newell,  had  made  out  nothing  act- 
ual against  him,  if  Roper,  the  driver,  may 
he  said  to  have  been  implicated  as  a 
wrong-doer.  But  Newell  might,  at  this 
stage,  perhaps  have  been  regarded  by  the 
jury  as  owner  of  the  horses,  and  Roper  as 
his  servant.  The  lease  was  not  in  proof. 
Constructively,  his  liability  would  follow 
from  the  neglect  of  his  servant;  and  in 
this  view  it  cannot  be  said  there  was  no 
evidence  against  him.  It  is  only  where 
the  evidence  totally  fails  as  to  one  whose 
case  can  be  separated  from  the  other  that 
he  is  entitled  to  be  acquitted  for  the  pur- 
pose of  being  sworn  as  a  witness  for  his 
co-defendant. 

The  motion  for  a  nonsuit,  which  fol- 
lowed, seems  to  have  been  the  more  proper 
one;  for  I  have  been  utterly  unable  to  see 
that,  so  far.  the  evidence  had  made  out 
any  neglect,  or  the  semblance  of  neglect, 
on  the  part  of  the  defendants,  while  it  had 
e8tal)lished  clear  neglect  on  the  other  side. 
But  this  question  has  been  sufficiently 
dwelt  upon  in  connection  with  the  defend- 
ants' proofs,  and  that  which  the  plaintiff 
adduced,  at  the  ck)se  of  the  cause.  It  was 
enough  if  the  cause  of  action  was  then 
made  out,  although  the  judge  might  have 
refused  to  iKMisuit.  It  appears  t<»  nie  it 
was   not.     It    follows   that  a    new    trial 


sh(juld  be  granted.  The  costs  should,  I 
think,  abide  the  event;  for  the  judge  erred 
in  omitting  to  nonsuit  the  plaintiff.  The 
case  was  certainly  not  made  better  for  the 
plaintiff  by  the  subsequent  evidence.  It  is 
not,  therefore,  merely  the  case  of  a  verdict 
against  the  weight  of  evidence,  which 
calls  for  payment  of  costs. 

New   trial  granted,  costs   to  abide  the 
event. 


(53  N.  J.  Law,  446,  19  Atl.  Rep.  1103.) 

Newman  v.  Phii.lipsburg  Horse-Car 
R.  Co. 

(Supreme  Court  of  New  Jersey.     June  5,  1890. ) 

1.  Negligence  —  Injuries  to  Child  —  Imputed 

Negligence. 
An  infant  of  tender  years  is  not  to  be  charged 
with  the  negligence  of  the   person   having   it  in 
charge. 

2.  Same — Street  Railroads. 

The  plaintiff,  about  two  years  of  age,  being  un- 
der the  care  of  her  adult  sister,  wandered  onto 
the  tracH  of  the  horse  railroad,  and  was  there 
run  over  by  the  carelessness  of  the  driver  of  the 
car.  Held,  that  plaintiff's  right  of  action  was 
not  lost,  even  if  the  sister's  carelessness  of  super- 
vision, in  part,  was  the  cause  of  her  injury. 

(Syllabus  by  the  Court.) 

Case  certified  from  circuit  court,  Warren 
county:  before  Chief  Justice  Beasley. 

The  plaintiff  was  a  child  2  years  of  age. 
She  was  in  the  custody  of  her  sister,  who 
was  22.  The  former,  being  left  by  herself 
for  a  few  minutes,  got  upon  the  railroad 
track  of  the  defendant,  and  was  hurt  by 
the  car.  The  occurrence  tooK  place  in  a 
public  street  of  the  village  of  Phillips- 
burgh.  The  carelessness  of  the  defendant 
was  manifest,  as  at  the  time  of  the  acci- 
dent there  was  no  one  in  charge  of  ti)e 
horse  drawing  the  car;  the  driver  being 
in  the  car,  collecting  fares.  The  circuit 
judge  submitted  the  three  following  prop- 
ositions to  this  court  for  itsadvisory  opin- 
ion, viz. :  "'First,  whether  the  negligence 
of  the  persons  in  charge  of  the  plaintiff,  an 
infant  minor,  should  be  imputed  to  the 
said  plaintiff;  second,  whether  the  con- 
duct of  the  ijersons  in  charge  of  the  plain- 
tiff at  the  time  of  the  injury  complained 
of  was  not  so  demonstrably  negligent 
that  the  said  circuit  court  should  have 
nonsuited  the  plaintiff,  or  that  the  court 
should  have  directed  the  jury  to  find  for 
the  defendant;  tliiril,  whether  a  new  trial 
ought  not  to  be  granted  on  the  ground 
that  the  damages  awarded  a  re  excess!  ve.  " 

Argued  November  term.  1SS9. 

Sliipman  &  Son,  for  plaintiff.  WilliHm 
H.  Morrow,  for  defendant. 

Beasi.ey,  C.  J.,  (after  stating  the  facts 
as  above.)  There  is  but  a  single  question 
presented  by  this  case,  and  that  question 
plainly  stands  among  the  vexed  questions 
of  the  law.  The  problem  is  whether  an 
infant  of  tender  years  can  be  vicai-iously 
negligent,  so  as  to  deprive  itself  of  a  reme- 
dy that  it  would  otherwise  be  entitled  to. 
In  some  of  the  American  states  this  <iues- 
tionhas  been  answei-ed  by  the  courtsin  the 
affirmative,  and  in  others  in  the  negative. 
To  the  former  of  thest-  classes  belongs  the 
decision  in  Hartfield  v.  Koper,  reported 
in  21  Wend. (>].'>.  This  caseaiiuears  to  have 
been  one  of  first  impression   on   this  sub- 


232 


LAW  OF  TOKTS. 


ject;  and  it  is  to  be  regcarded  not  only  as  | 
the  precursor,  but  as  the  parent,  of  all  the 
cases  of  the  same  strain  that  have  since 
appeared.  The  in(]uiry  with  respect  to 
the  effect  of  theneglif^euceof  the  custodian 
of  the  infant,  too  young  to  be  intelliy:ent 
of  situations  and  circumstances,  was  di- 
rectly presented  for  decision  in  the  primary 
case  til  us  referred  to;  for  the  facts  were 
these,  viz. :  The  plaintiff,  a  child  of  about 
two  years  of  age,  was  standing  or  sitting 
in  the  snow  in  a  public  road,  and  in  that 
situation  was  run  over  by  a  sleigh  driven 
by  the  defendants.  The  opinion  of  the 
court  was  that,  as  the  child  was  permit 
ted  by  its  custodian  to  wander  into  a  po- 
sition of  such  danger,  it  was  without 
remedy  for  the  hurts  thus  received,  unless 
they  were  voluntarily  inflicted,  or  were 
the  product  of  gross  carelessness  on  the 
part  of  the  defendants.  It  is  obvious  that 
the  judicial  theory  was  that  the  infant 
was,  through  the  medium  of  its  custo- 
dian, the  doer,  in  part,  of  its  own  mis- 
fortune, and  that  consequently,  by  force 
of  the  well-known  rule  under  such  condi- 
tions, he  had  no  right  to  an  action.  This, 
of  course,  was  visiting  the  child  for  the 
neglect  of  the  custodian ;  and  such  inflic- 
tion is  justified  in  the  case  cited  in  this 
wise:  "The  infant, "says  the  court,  "is 
not  sni Juris.  He  belongs  to  another,  to 
whom  discretion  in  the  care  of  his  person 
is  exclusivel.y  confided.  That  person  is 
keeper  and  agent  for  this  purpose;  in  re- 
spect to  third  persons,  his  act  must  be 
deemed  that  of  the  infant:  his  neglect,  the 
infant's  neglect."  It  will  be  observed 
that  the  entire  content  of  this  quotation 
is  the  statement  of  a  single  fact,  and  a 
deduction  from  it;  the  premise  being  that 
the  child  must  be  in  the  care  and  charge 
of  an  adult,  and  the  inference  being  that 
for  that  reason  the  neglects  of  the  adult 
are  the  neglects  of  the  infant.  But  surely 
this  is  conspicuously  a  iinn  sequitur. 
How  does  the  custody  of  the  infant  justify 
or  lead  to  the  imputation  of  another's 
fault  to  him?  The  law,  natural  and  civil, 
puts  the  infant  under  the  care  of  the 
adult;  bat  how  can  this  right  to  care  for 
and  protect  be  construed  into  a  right 
to  waive  or  forfeit  any  of  the  legal  rights 
of  the  infant?  The  capacity  to  make  such 
waiver  or  forfeiture  is  not  a  necessary  or 
even  convenient  incident  of  this  office  of 
the  adult,  but  on  the  contrary  is  quite  in- 
consistent with  it;  for.the  power  to  pro- 
tect is  the  opposite  of  the  power  to  harm, 
either  by  act  or  omission.  In  this  case,  in 
21  Wend.  61.5,  it  is  evident  that  the  rule  of 
law  enunciated  by  it  is  founded  in  the  the- 
ory that  the  custodian  of  the  infant  is  the 
agent  of  the  infant.  But  this  is  a  mere 
assumption,  without  legal  basis;  for  such 
custodian  is  the  agent,  not  of  the  infant, 
but  of  the  law.  If  such  supposed  agency 
existed,  it  would  embrace  many  interests 
of  the  infant,  and  could  not  be  confined 
to  the  single  instance  where  an  injury  is 
inflicted  by  the  co-operative  tort  of  the 
guardian.  And  yet  it  seems  certain  that 
such  custodian  cannot  surrender  or  im- 
pair a  single  right  of  any  kind  that  is  vest- 
ed in  the  child,  nor  impose  any  legal  bur- 
den upon  it.  If  a  mother,  traveling  with 
her  child  in  her  arms,  should  agree  with  a 


railway  company  that,  in  case  of  an  acci- 
dent to  such  infant  by  reason  of  the  joint 
negligence  of  herself  and  the  company-,  the 
latter  should  not  be  liable  to  a  suit  by 
the  child,  such  an  engagement  would  be 
plainly  invalid  on  two  grounds:  First, 
the  contract  would  be  contra  honos 
mores;  and,  second,  because  the  mother 
was  not  the  agent  of  the  child,  authorized 
to  enter  into  the  agreement.  Nevertheless 
the  position  has  been  deemed  defensible, 
that  the  same  evil  consequences  to  the  in- 
fant will  follow  from  the  negligence  of  the 
mother,  in  the  absence  of  such  supposed 
contract,  as  would  have  resulted  if  such 
contract  should  have  been  made,  and 
should  have  been  held  valid. 

In  fact,  this  doctrine  of  the  imputability 
of  the  misfeasance  of  the  keeper  of  a  child 
to  the  child  itself  is  deemed  to  be  a  pure 
interpolation  into  the  law  ;  for,  until  the 
case  under  criticism,  it  was  absolutely  un- 
known, nor  is  it  sustained  by  legal  analo- 
gies. Infants  have  always  been  the  par- 
ticular objects  of  the  favor  and  protection 
of  the  law.  In  the  language  of  an  ancient 
authority,  this  doctrine  is  thus  expressed" 
"The  common  principle  is  that  an  infant, 
in  all  things  which  sound  in  his  benefit, 
shall  have  favor  and  preferment  in  law  as 
well  as  another  man,  but  shall  not  bt  prej- 
udiced by  anything  to  his  disadvantage." 
9  Vin.  Abr.  374.  And  it  would  appear  to 
be  plain  that  nothing  could  be  more  to  the 
prejudice  of  an  infant  than  to  convert,  by 
construction  of  law,  the  connection  be- 
tween himself  and  his  custodian  into  an 
agency  to  which  the  harsh  rule  of  respon- 
deat superior  i^hould  be  applicable.  The 
answerableness  of  the  principal  for  the 
authorized  acts  of  his  agent  is  not  so  much 
the  dictate  of  natural  justice  as  of  public 
policy,  and  has  arisen,  with  some  proprie- 
ty, from  the  circumstances  that  the  crea- 
tion of  the  agency  is  a  voluntary  act,  and 
that  it  can  be  controlled  and  ended  at  the 
will  of  its  creator.  But  in  the  rela  tionship 
between  the  infant  and  its  keeper  all  these 
decisive  characteristics  are  wholly  want- 
ing. The  law  imposes  the  keeper  upon  the 
child,  who  of  course  can  neither  control 
nor  remove  him  ;  and  the  injustice,  there- 
fore, of  making  the  latter  responsible  in 
any  measure  whatever  for  the  torts  of  the 
former,  would  seem  to  be  quite  evident 
Such  subjectivity  would  be  hostilein  every 
respect  to  the  natural  rights  of  the  infant, 
and  consequently  cannot  with  any  show 
of  reason  be  introduced  into  that  provis- 
ion which  both  necessity  and  law  estab- 
lish for  his  protection.  Nor  can  it  be  said 
that  its  existence  is  necessary  to  give  just 
enforcement  to  the  rights  of  others.  When 
it  happens  that  both  the  infant  and  its 
custodian  have  been  injured  by  the  co- 
operative negligence  of  such  custodian  and 
a  third  party,  it  seems  reasonable,  at  least 
in  some  degree,  that  the  latter  should  be 
enabled  to  say  to  the  custodian:  "You 
and  I,  by  our  common  carelessness,  have 
done  this  wrong,  and  therefore  neither 
can  look  to  the  other  for  redress."  But 
when  such  wrong-doer  says  to  the  infant: 
"Your  guardian  and  1.  by  our  joint  mis- 
conduct, havebrought  this  lossupon  you; 
consequently,  you  have  no  right  of  action 
against  me,  but  you  must  look  for  iudem- 


NEGLIGENCE. 


233 


nification  to  your  fjnnrdian  alone," — a  '  against  the  infant.  If  the  nepclects  of  the 
proposition  is  stated  that  appears  to  be  guardian  are  to  be re}j;ardefl  as  the  neprlecta 
without  any  basis  either  in  good  sense  or  of  tlie  infant,  as  \vas  asserted  in  the  New 
law.  Tlie  conversion  of  the  infant,  who  |  York  decisions,  it  would,  from  logical  ne- 
is  entirely  free  from  fault,  into  a  wrong- 1  cessity,  follow  that  theinfant  must  indem- 
doer,  by  imputation,  is  a  logical  contriv- !  nify  those  who  should  be  harmed  by  such 
ance  uncongenial  with  the  spirit  of  juris- ,  neglects.  That  such  a  doctrine  has  never 
prudence.  The  sensible  and  Ic^gal  doctrine  '  prevailed  is  conclusively  shown  by  the  fact 
is  tnis:  An  infant  of  tender  years  cannot  that  in  the  reports  there  is  no  indication 
be  charged  with  negligence,  nor  can  he  be  that  such  a  suit  has  ever  been  brought, 
so  charged  with  the  commission  of  such  \  It  has  already  been  ol)served  that  judi- 
fault  by  substitution,  for  he  is  incapable  cial  opinions  touching  the  subject  just  dis- 
of  appointing  an  agent;  the  consequence  cussed  are  in  a  state  of  direct  antagonism, 
being  that  he  can  in  no  case  be  considered  and  it  would  therefore  serve  no  useful  pur- 
to  be  the  b^amable  cause,  either  in  whole  pose  to  refer  to  any  of  them.  It  is  suffi- 
or  ill    part,  of  his   own   injury.     There  is   cient  to  say  that  the  l3ading   text-writers 


no  injustio  '  nor  hardship  in  retiuiring  all 
wrong-doers  to  be  answerable  to  a  person 
who  is  incapable  either  of  self-protection, 
or  of  being  a  participator  in  their  misfea- 
sance. Nor  is  it  to  be  overlooked  that 
the  theory  here  repudiated,  if  it  should 
be  adoj/ted,  would  go  the  length  of 
making  an  infant  in  its  nurse's  arms  an- 
swerable for  all  the  negligences  of  such 
nurse  while  thus  employed  in  its  service. 
Every  person  so  damaged  by  the  careless 
custodian  would   be  entitled  to  his  action 


have  concluded  that  the  weight  of  such 
authority  is  adverse  to  the  doctrine  that 
an  infant  can  become  in  an^'  wise  a  tort- 
feasor bv  imputation.  1  Shear.  &  R.  Sf};;. 
§  75;  Whart.  Neg.  §  311 ;  2  Wood.Ry.  Law, 
1284.  In  our  opinion,  the  weight  of  rea- 
son is  in  the  same  scale. 

It  remains  to  add  that  we  do  not  think 
the  damages  sc)  excessive  as  to  place  the 
verdict  under  judicial  control. 

Let  the  circuit  court  be  advised  to  ren- 
der judgment  on  the  finding  of  the  jury. 


(Thp  following  cases  follow  Hartfield  v.  Roper,  21  Wend.  615:  Casev  v.  Smith,  1.52  Mass.  294.  25 
N.  E.  Rep.  734:  Wright  v.  Railroad  Co.,  4  Allen,  283;  O'Brien  v.  McGlinchv,  6S  Me.  .5.52;  Fitzgerald  v. 
Railroad  Co.,  29  Minn.  336,  13  N.  W.  Rep.  168;  Mangam  v.  Railroad  Co.,  38  N.  Y.  4.55.  The  following 
cases  are  to  the  contrary:  Railroad  Co.  v.  Schuster,  113  Pa.  St.  412,  6  Atl.  Rep.  269;  Dalev  v.  Railroad 
Co.,  26  Conn.  591 ;  Wvniore  v.  Mahaska  Co.,  7S  Iowa.  396,  43  N.  W.  Rep.  264;  Railroad  Co.  v.  Snvder,  13 
Ohio  St.  408;  Winters  v  Railroad  Co..  99  Mo.  509,  12  S.  W.  Rep.  652;  Shippv  v.  Au  Sable,  [Mich.] 
48  N.  W.  Rep.  584;  Railroad  Co.  v.  Wilcox,  [111.  Sup.]  27  N.  E.  Rep.  899;  Robinson  v.  Cone,  22  \t.  214.) 


Imputation  of  negligence  to  passenger — Former  English  doctrine 
now  overruled. 


(L.  R.  13  App.  Cas.  1.) 

Mills  e^  al.  v.  Armstrong  et  al. 

The  Bekxixa. 

{House  of  Lords.    Feb.  24,  1888.) 

1.  Negligence — Coxtributoky— Impcted  to  Pas- 

SEXGE)  . 

The  negligeiice  of  the  persons  in  charge  of  a 
public  conveyance  cannot  be  imputed  to  a  passen- 
ger therein  who  is  injured  by  the  joint  negli- 
gence of  such  persons  and  those  in  charge  of  an- 
other conveyance,  to  defeat  his  action  against  the 
latter.  Thorogood  v.  Bryan,  S  C.  B.  115,  and 
Armstrong  v.  Railroad  Co.,  L.  R.  10  Exch.  47, 
overruled. 

2.  S.\Mi:— CoLT.isiox  Causixg  Death. 

A  collision  occurred  between  two  steam-ships 
through  the  negligence  of  the  masters  and  crews 
of  both  vessels;  and  a  passenger  and  one  of  the 
■crew  of  one  steam-ship,  neither  of  whom  had  any 
thing  to  do  with  the  negligent  navigation,  were 
drowned.  Held,  that  actions  would  lie  against 
the  owners  of  the  other  vessel  to  recover  for 
such  deaths,  under  a  statute  (9  &  10  Vict.  c.  93) 
giving  a  right  of  action  to  personal  represents 
tives  of  a  deceased  person  for  injuries  causing  his 
death,  and  that  the  admiralty  rule  of  half  dam- 
ages was  not  applicable. 

Appeal  frcjni  court  of  appeal. 

Actions  l)y  the  personal  representatives 
of  J.  H.  Armstrong  andM.A.Toeg  against 
the  owners  of  the  steam-ship  Bernina,  to 
recover  for  the  death  of  such  persons, 
caused  bj- injuries  received  in  a  collision  be- 
tween the  steam-ships  Bernina  and  Bu- 
shire,  which  collision  was  due  to  the  neg- 
ligence of  the  officers   and   crews   of   both 


vessels.  The  action  was  bought  in  admi- 
ralty under  "  Lord  Campbell's  Act,  "  (9  &  10 
Vicf.  c.  93.)  which  gives  a  right  of  action 
to  the  personal  representatives  of  a  de- 
ceased person  forinjuries  causing  his  death. 
At  the  time  of  the  collision  .\rmstrong  was 
the  first  engineer  of  the  Bushire,  an<l  Toeg 
was  a  passenger  thereon,  but  neither  of 
them  had  anything  to  do  with  the  negli- 
gent navigation  of  the  vessel.  The  court 
below  gave  judgment  for  defendants  on 
the  authority  of  Thorogood  v.  Bryan.  S 
C.  B.  11.5.  On  appeal,  the  judgment  was 
reversed  by  the  court  of  appeal,  which 
overruled  Thorogood  v.  Bryan.  Defend- 
ants appealed. 

Sir  Ualter  Phillimore  and  J.  Gorell 
Barnes,  for  appellants.  Mr.  BuckniU.  Q.  C. 
(A.  E.  Nelson,  with  him,)  for  respondents. 

Lord  Hrrschell.  My  lords,  this  ap- 
peal arises  from  a  special  case  stated  in 
actions  in  which therespondentsare plain- 
tiffs. They  are  both  actions  brought  un- 
der Lord  Campbell's  act  to  recover  dam- 
ages against  the  appellants  for  the  loss 
sustained  owing  to  the  deaths  of  the  per- 
sons of  whom  the  respcjndents  are  the  per- 
sonal representatives,  and  who,  it  is  al- 
leged,lost  theirlives  through  thenegligence 
of  the  appellants.  The  appellants  aie  the 
owners  of  the  steam-ship  Bernina,  be- 
tween which  vessel  and  the  steaui-ship 
Bushire  a  collision  took  place,  which  led 
to  the  loss   of  15    persons    who    were  on 


234 


LAW  OF  TORTS. 


board  the  latter  vessel.  It  is  admitted 
that  the  collision  was  caused  by  the  fault 
or  default  of  the  masters  and  crews  of  both 
vessels.  J.  H.  Armstrong,  whose  admin- 
istratrix one  of  the  respondents  is,  was  a 
member  of  the  crew  of  the  Bushire,  but 
had  nothing  to  do  with  its  careless  nav- 
igation. M.  A.  Toeg,  of  whom  the  other 
respondent  is  administratiix,  was  a  pas- 
senger on  board  the  Bushire. 

The  question  arises  whether,  under  these 
circumstances,  the  appellants  are  liable. 
The  appellants  having,  as  they  admit, 
been  guilty  of  negligence  from  which  the 
respondents  have  suffered  loss,  a  prima 
facie  case  of  liability  is  made  out  against 
them.  How  do  they  defend  themselves? 
They  do  not  allege  that  those  whom  the 
respondents  represent  were  personally 
guilty  of  negligence  which  contributed  to 
the  accident.  Nor,  again,  do  they  allege 
that  there  was  contributory  negligence 
on  the  part  of  any  third  person  standing 
in  such  a  legal  relation  towards  the  de- 
ceased men  as  to  cause  the  acts  of  that 
third  person,  on  principles  well  settled  in 
our  law,  to  be  regarded  as  their  acts  ;  as, 
e.  g.,  the  relation  of  master  and  servant, 
or  employer  and  agent,  acting  within  the 
scope  of  his  authority.  But  they  rest 
their  defenses  solely  upon  the  ground  that 
those  who  were  navigating  the  vessel  in 
which  the  deceased  men  were  being  car- 
ried were  guilty  of  negligence,  without 
which  the  disaster  would  not  have  oc- 
curred. In  support  of  the  proposition 
that  this  establishes  a  defense,  they  rely 
U{)on  the  case  of  Thorogood  v.  Bryan,  <S 
C  B.  115,  wliich  undoubtedly  doessupport 
their  contention.  This  case  was  decided 
as  long  ago  as  1849,  and  has  been  followed 
in  some  other  cases ;  but,  though  it  was 
early  subjected  to  adverse  criticism,  it 
has  never  come  for  revision  before  a 
court  of  appeal  until  the  present  occa- 
sion. That  action  was  one  brought  under 
Lord  Campbell's  act  against  the  owner  of 
an  omnibus  by  which  the  deceased  man  was 
run  over  and  killed.  The  omnibus  in  which 
he  had  been  carried  had  set  him  down  in 
the  middle  of  the  road  instead  of  drawing 
up  to  the  curb,  and  before  he  could  get 
out  of  the  way  he  was  run  over  by  the  de- 
fendant's omnibus,  which  was  coming 
along  at  too  rapid  a  pace  to  be  able  to 
pull  up.  The  learned  judge  directed  the 
jury  that,  "if  they  were  of  opinion  that 
want  of  care  on  the  part  of  the  driver  of 
Barber's  omnibus  in  not  drawing  up  to 
the  curb  to  put  the  deceased  down,  or  want 
of  care  on  the  part  of  the  deceased  himself, 
had  been  conducive  to  the  injury,  in  either 
of  those  cases,  notwithstanding  the  de- 
fendant, by  her  servant,  had  been  guilty 
of  negligence,  their  verdict  must  be  for 
the  defendant. '■  The  jury  gave  a  verdict 
for  the  defendant,  and  the  question  was 
then  raised,  on  a  rule  for  a  new  trial  on 
the  ground  of  misdirection,  whether  the 
ruling  of  the  learned  judge  was  right.  The 
court  held  that  it  was. 

It  is  necessary  to  examine  carefully  the 
reasoning  by  which  this  conclusion  was 
arrived  at.  Coltman,  J.,  said:  "It  ap- 
pears to  me  that,  having  trusted  the  party 
by  selecting  the  particular  conveyance, 
the  plaintiff  has  so   far  identified   himself 


with  the  owner  and  her  servants  that,  if 
any  injury  results  from  their  negligence,  he 
must  be  considered  a  party  to  it.  In 
other  words,  the  passenger  is  so  far  iden- 
tified with  the  carriage  in  which  he  is  trav- 
eling that  want  of  care  of  the  driver  will 
be  a  defense  of  the  driver  of  the  carriage 
which  directly  caused  the  injury."  Maule 
and  Vaughn  Williams,  .TJ..  also  dwelt 
upon  this  view  of  the  identification  of  the 
passenger  with  the  driver  of  the  vehicle  in 
which  he  is  being  carried.  The  former 
thus  expressed  himself:  "I  incline  to 
think  that  for  this  purpose  the  deceased 
must  be  considered  as  identified  with  the 
driver  of  the  omnibus  in  which  he  volun- 
tarily became  a  passenger,  and  that  the 
negligence  of  the  driver  was  the  negligence 
of  the  deceased."  Vaughn  Williams.  J., 
said  :  "  I  think  the  passenger  must  for  this 
purpose  be  considered  as  identified  with 
the  person  having  the  management  of  the 
omnibus  he  was  conveyed  by." 

With  the  utmost  respect  for  these  emi- 
nent judges,  I  must  say  that  I  am  unable 
to  comprehend  this  doctrine  of  identifica- 
tion upon  which  they  lay  so  much  stress. 
In  what  sense  is  the  passenger  by  a  public 
stage-coach,  because  he  avails  himself  of 
the  accommodation  afforded  by  it,  iden- 
tified with  the  driver?  Thelearned  judges 
manifestly  do  not  mean  to  suggest 
(though  some  of  the  language  used  would 
seem  to  bear  that  construction)  that  he 
passenger  is  so  far  identified  with  the 
driver  that  the  negligence  of  the  latter 
would  render  the  former  liable  to  third 
persons  injured  by  it.  I  presume  that  they 
did  not  even  mean  that  the  identification 
is  so  complete  as  to  prevent  the  passenger 
from  recovering  against  the  driver's  mas- 
ter; though,  if  "negligence  of  the  owner's 
servants  is  to  be  considered  negligence 
of  the  passenger,"  or  if  he  "must  be  con- 
sidered a  party"  to  their  negligence,  it  is 
not  easy  to  see  why  it  should  not  be  a  bar 
to  such  an  action.  In  short,  as  far  as  I 
can  see.  the  identification  appears  to  be 
effective  only  to  the  extent  of  enabling 
another  person,  whose  servants  have 
been  guilty  of  negligence,  to  defend  him- 
self by  the  allegation  of  contributory  neg- 
ligence on  the  part  of  the  person  injured. 
But  the  very  question  that  had  to  be  de- 
termined was  whether  the  contributory 
negligence  of  the  di'iver  of  the  vehicle  was 
a  defense,  as  against  the  passenger,  when 
suing  another  wrong-doer.  To  say  that 
it  is  a  defense  because  the  passenger  is 
identified  with  the  driver  appears  to  me 
to  beg  the  question,  when  it  is  not  sug- 
gested that  this  identication  results  from 
any  recognized  principles  of  law,  or  has 
any  other  effect  than  to  furnish  that  de- 
fense, the  validity  of  which  was  the  very 
point  in  issue.  Two  persons  may  na 
doubt  be  so  bound  together  by  the  legal 
relation  in  which  they  stand  to  each  other 
that  the  acts  of  one  may  be  regarded  by 
the  law  as  the  acts  of  the  other.  But  the 
relation  between  the  passenger  in  a  pub- 
lic vehicle  and  the  driver  of  it  certainly  is 
not  such  as  to  fall  within  any  of  the  rec- 
ognized categories  in  which  the  act  of 
one  man  is  treated  in  law  as  the  act  of 
another. 

I  pass   now  to   the  other  reasons  given 


NEGLIGENCE. 


235 


for  the  judgment  in  Thorogood  v.  Bryan.  | 
Maule,   J.,   says:    "On   the  part     of   the  ^ 
plaintiff,  it  is  suggested  that  a  passenger  , 
in   a   public  conveyance    has   no   control  | 
over  the  driver.     But  I  think  that   cannot  I 
with   propriety   be  said.     He  selects   the! 
conveyance.     He  enters  into   a  contract  [ 
with    the  owner,  whom,  by   his   servant,  j 
the  driver,  he  employs  to   drive  him.     If 
he  is  dissatisfied  with  the  mode  of  convey- 
ance, he  is  not  obliged    to  avail  himself  of 
it.     But,  as  regards   the  present  plaintiff, 
he  is  not  altogether  without  fault.    He 
chose  his  own  conveyance,  and  must  take 
the   consequences   of   any   default   on   the 
part  of  the  driver  whom  he  thought  fit  to 
trust. " 

I  confess  that  I  cannot  concur  in  this 
reasoning.  I  do  not  think  it  well  founded, 
either  in  law  or  in  fact.  What  kind  ofcon- 
trol  has  the  passenger  over  the  driver 
which  would  make  it  reasonable  to  hold 
the  former  affected  by  the  negligence  of 
the  latter?  And  is  it  any  more  reasonable 
to  hold  him  so  affected  because  he  chose 
the  mode  of  conveyance,  — that  is  to  say, 
drove  in  an  omnibus  rather  than  walked, 
or  took  the  first  omnibus  that  passed  him 
instead  of  waiting  for  another?  And, 
when  it  is  attempted  to  apply  this  reason- 
ing to  passengers  traveling  in  steam-ships 
or  on  railways,  the  unreasonableness  of 
such  a  doctrine  is  even  more  glaring. 

The  only  other  reason  given  is  contained 
in  the  judgment  of  Chesswell,  J.,  in  these 
words:  "  If  the  driver  of  the  omnibus  the 
deceased  was  in  had,  i>y  his  negligence  or 
want  of  due  care  and  skill,  contributed  to 
an  injury  from  a  collision,  his  master  clear- 
ly could  maintain  no  action;  and  1  must 
confess  I  see  no  reason  why  a  passenger 
who  employs  the  driver  to  convey  him 
stands  in  any  better  position. "  Surely, 
with  deference,  the  reason  for  the  difference 
lies  on  the  very  surface.  If  the  master  in 
such  a  case  could  maintain  no  action,  it  is 
because  there  existed  between  him  and  the 
driver  the  relation  of  master  and  servant. 
It  is  clear  that,  if  his  driver's  negligence 
alone  had  caused  the  collision,  he  would 
have  been  liable  to  an  action  for  the  in- 
jury resulting  from  it  to  third  parties. 
The  learned  judge  would,  I  imagine,  in 
that  case,  have  seen  a  I'eason  why  a  pas- 
senger in  tiie  omnibus  stood  in  a  better 
position  than  the  master  of  the  driver.  I 
have  now  dealt  with  all  the  reasons  on 
which  the  judgment  in  Thorogood  v.  Bry- 
an was  founded,  and  I  entirely  agree  with 
the  learned  judges  in  the  court  below  in 
thinking  them  inconclusive  and  unsatis- 
factory. 

I  will  not  detain  your  lordships  further 
on  this  part  of  the  case,  beyond  saying 
that  1  concur  with  the  judgmt^nts  of  tbe 
learned  judges  in  the  court  below,  and  es- 
pecially with  the  very  exhaustive  judg- 
ment of  the  master  of  the  rolls. 

It  was  suggested  in  the  course  of  the  ar- 
gument that  Thorogood  v.  Bryan  might 
be  supported  on  the  ground  that  the  alle- 
gation that  the  negligence  which  caused 
the  injury  was  tiie  defendant's  was  not 
proved,  inasmucli  as  it  was  the  defendant's 
negligence  in  conjunction  with  that  of  the 
driver  of  the  other  omnibus.  It  may  be 
that,   as   a     pleading    point,   this   would 


have  been  good.  It  i"?  not  necessary  to 
express  an  opinion  whether  it  would  or 
not.  I  do  not  think  it  would  have  been  a 
defense  on  the  merits  if  the  facts  had  been 
properly  averred.  If,  by  a  collision  be- 
tween two  vehicles,  a  person  unconnected 
with  either  vehicle  were  injured,  the  own- 
er of  neither  vehicle,  when  sued,  could 
maintain  as  a  defense,  "  I  am  not  guilty, 
because  but  for  the  negligence  of  another 
person  the  accident  would  not  have  hap- 
pened." And  i  do  not  see  how  this  de- 
fense is  anymore  available  as  ajiainst  a 
person  being  carried  in  one  of  the  vehicles, 
unless  the  reasoning  in  Thorogood  v.  Bry- 
an be  well  founded. 

I  have  said  that  the  decision  in  Thoro- 
good V.  Bryan  has  not  been  unquestioned. 
I  do  not  think  it  necessary  to  enter  upon 
a  minute  consideration  of  the  subsequent 
cases,  after  the  careful  and  accurate  ex- 
amination to  which  they  have  been  sub- 
jected by  the  master  of  the  rolls.  The  re- 
sult may  be  summarized  thus:  The 
learned  editors  of  Smith's  Leading  Cases, 
Willes  and  Keating,  JJ.,  strongly  ques- 
tioned the  propriety  of  the  decision.  (Sea 
notes  to  Ashby  v.  White,  1  Smith,  Lead, 
('as.  472.)  Parke,  B.,  whose  dictum  in 
Bridge  v.  Railway  Co.,  3  Mees.  &  W.  244, 
Williams,  J.,  followed  in  directing  the 
jury  in  Thorogood  v.  Bryan,  appears  to 
have  doubted  the  soundness  of  the  judg- 
ment in  that  case.  Dr.  Lushington,  in 
The  .Milan,  Lush.  388,  expressed  strongdis- 
approval  of  it;  and  though  in  Armstrong 
V.  Railway  Co.,  L.  R.  10  Exch.  47,  it  was 
followed,  Bramwell  and  Pollock,  BB., 
to  say  the  least,  did  not  indicate  sat- 
isfaction with  it.  I  understand  my  noble 
and  learned  friend  Lord  Bramwell,  after 
hearing  this  case  argued,  and  maturely 
considering  it.  agrees  with  the  judgment 
of  the  court  below.  In  Scotland,  the  de- 
cision in  Thorogood  v.  Bryan  was  pro- 
nounced unsatisfactory  in  Adams  v.  Rail- 
way Co.,  3  Ct.  Sess.  Cas.  4th  Ser.  215.  In 
America  it  has  been  followed  in  the  courts 
of  some  States,  but  it  has  often  been  de- 
parted from;  and,  upon  the  whole,  the 
view  taken  has  been  decidedly  adverse  to 
it.  The  latest  case  that  I  am  aware  of  in 
that  country  is  Little  v.  Hackett,  QlG  U. 
S.  366,  6  Snp.  Ct.  Rep.  391.)  That  was  a 
decision  of  the  supreme  court  of  the  United 
States,  whose  decisions,  on  account  of  its 
high  character  for  learning  and  ability, 
are  always  to  be  regarded  with  respect. 
Field,  J.,  in  delivering  judgment,  exam- 
ined all  the  English  and  American  cases, 
and  the  conclusion  adopted  was  the  same 
as  that  at  which  your  lordships  have  ar- 
ri  ved . 

I  have  only  this  observation  to  add: 
The  case  of  Waite  v.  Railway  Co.,  El.  Bl. 
&  El.  719,  was  much  relied  on  in  the  argu- 
ment for  the  appellants;  but  the  very 
learned  counsel  who  argued  that  case  for 
the  defendants,  and  all  the  judges  who 
took  part  in  the  decision,  were  of  opinion 
that  it  was  clearly  distinguishable  from 
Thorogood  v.  Bryan,  and  did  not  involve 
a  review  of  that  case.  Ithink  they  were 
right. 

As  regards  the  other  questions  raised,  I 
have  only  to  say  that  I  think  they  were 
properly  dealt  with  by  the  court  below. 


236 


LAW  or  TORTS. 


lam  requested  by  my  noble  and  learned 
n-iend  Lord  Bramwell,  who  was  unable 
to  lemaiu  to  i*ead  the  opinion  which  he 
had  prepared,  to  state  that  he  concurs  in 
the  motion   which  I  am  about  to  make. 


I  move  your  lordships  that  the  judgment 
of  the  court  of  appeals  be  affirmed,  and 
the  appeal  be  dismissed,  with  costs. 

Order  appealed   from   affirmed,  and  ap- 
peal dismissed,  with  costs. 


(The  authority  of  Thorogood  v.  Bryan,  8  C.  B.  115,  is  also  now  generally  denied  in  this  country. 
See  Railroad  Co.V.  Steiubrenner,  47  N.  J.  Law,  161;  Kobinson  v.  Railroad  Co.,  (56  N.  Y.  11;  Little  v. 
HackeU,  116  U.  S.  366,  6  Sup.  Ct.  Rep.  S'Jl;  Bunting  v.  Hogsett,  139  Fa.  St.  363,  21  Atl.  Rep.  31,  33,  34; 
Koves  V.  Boscawen,  64  N.  H.  361,  10  Atl.  Rep.  690;  State  v.  Railroad  Co.,  80  Me.  430,  15  Atl.  Rep.  36; 
Nesbit  V.  Town  of  Garner,  75  Iowa,  314,  39  N.  W.  Rep.  516;  Railroad  Co.  y.  Hogeland,  66  Md.  149,  7 
Atl.  Rep.  105 ;  Railroad  Co.  v.  Eadie,  43  Ohio  St.  91,  1  N.  E.  Rep.  519.  See,  however,  Brickell  v.  Rail 
road  Co.,  120  N.  Y.  290,  24  N.  E.  Rep.  449.) 


6.  Effect  of  acting  under  stress  of  peril  to  human  life. 


(43  N.  Y.  503.) 

EcKERT  V.  Long  Island  R.  Co. 

{Court  of  Appeals  of  New  York.    Jan.  24, 1871.) 

1.  Negligexce — Contributory — Effort  to  Save 

Life  of  Another  in  Peril. 
Negligence  cannot  be  imputed  by  law  to  a  per- 
son iu  his  effort  to  save  the  life  of  another  in  ex- 
treme peril,  unless  made  under  such  circum- 
stances as  to  constitute  rashness  in  the  judgment 
of  prudent  persons. 

2.  Same — Instructions  to  Jurt. 

Plaintiff's  intestate,  standing  50  feet  from  de- 
fendant's railroad  track,  suddenly  discovered  a 
small  child  on  the  track  in  front  of  an  approach- 
ing ti'ain,  and,  without  a  moment's  hesitation, 
ran  to  it,  seized  it,  and  threw  it  in  safety  from 
the  track,  but  was  struck  and  killed  by  the  en- 
gine. Held,  ill  an  action  to  recover  damages  for 
his  death,  that  the  court  properly  refused  to 
charge  that,  if  the  deceased  placed  himself  in 
peril  from  which  he  received  the  injury  to  save 
tne  child,  plaintiff  could  not  recover,  but  properly 
left  10  the  ]ury  the  question  of  whether  the  neg- 
ligence of  intestate  contributed  to  his  injury. 

Allen  and  Polger,  JJ.,  dissenting. 

Appeal  from  supreme  court,  general 
term,  se(;ond  district. 

Action  brought  in  the  city  court  of 
Brooklyn  by  Anna  Eckert,  as  administra- 
trix of  Henry  Eckert,  deceased,  against 
the  Long  Island  Railroad  Company,  to 
recover  damages  for  the  death  of  her  hus- 
band, caused  by  the  alleged  negligence  of 
defendant.  The  testimony  of  plaintiff's 
witnesses  showed  thatthe  intestate,  while 
standing  tallying  with  a  companion  about 
50  feet  from  defendant's  track  in  East  New 
York,  suddenly  discovered  a  child  three 
or  four  3-ears  old  on  the  track  at  a  cross- 
ing in  front  of  a  rapidly  approaching 
train,  and  he  immediately  ran  and  seized 
it  and  tlirew  it  from  the  track,  but  before 
he  could  get  clear  of  the  track  was  struck 
by  the  locomotive  and  killed.  Plaintiff's 
witnesses  testified  that  the  train  was  run- 
ning at  fu'.l  speed,  and  that  no  signal  was 
given,  which  was  denied  by  defendant's 
witnesses.  Defendant  asked  a  nonsuit 
on  the  ground  of  the  contributory  negli- 
gence of  intestate,  which  was  refused.  The 
court  also  refused  to  charge,  at  defend- 
ant's request,  that  if  deceased  voluntarily 
placed  himself  in  peril,  from  which  he  re- 
ceived the  injury,  to  save  the  child, 
whether  the  child  was  or  was  not  in  dan- 
ger, the  plaintiff  could  not  recover,  and 
submitted  to  the  jury  the  question  wheth- 
er the  negligence  of  deceased  contributed 
to  the  accident.  Defendant  duly  excepted. 
V^erdict  and  judgment  for  plaintiff,  which 


was  affirmed  upon  appeal  to  the  supreme 
court.     Defendant  appealed. 

Aaron  J.  Vanderpoel,  for  appellant. 
George  G.  Reynolds,  for  respondent. 

Grover,  J.  The  important  question  in 
this  case  arises  upon  the  exception  taken 
by  the  defendant's  counsel  to  the  denial 
of  his  motion  for  a  nonsuit,  made  upon 
the  ground  that  the  negligence  of  the  plain- 
tiff's intestate  contributed  to  the  injury 
that  caused  his  death.  The  evidence 
showed  that  the  train  was  approaching 
in  plain  view  of  the  deceased,  and  had  he 
for  his  own  purposes  attempted  to  cross 
the  track,  or  with  a  view  to  save  proper- 
ty placed  himself  voluntarily  in  a  position 
where  he  might  have  received  an  injury 
from  a  collision  with  the  train,  his  conduct 
would  have  been  grossly  negligent,  and 
no  recoYery  could  have  been  had  for  such 
injury.  But  the  evidence  further  showed 
that  there  was  a  small  child  upon  the 
track,  who,  if  not  rescued,  must  have 
been  inevitably  crushed  by  the  rapidly  ap- 
proaching train.  This  the  deceased  saw, 
and  he  ow^ed  a  duty  of  important  obliga- 
tion to  this  child  to  rescue  it  from  its  ex- 
treme peril,  if  he  could  do  so  without  in- 
curring great  danger  to  himself.  jXegli- 
genee  implies  some  act  of  commission  or 
omission  wrongful  in  itself.  Under  the 
circumstances  in  which  the  deceased  was 
placed,  it  was  not  wrongful  in  him  to 
make  every  effort  in  his  power  to  res- 
cue the  child,  compatible  with  a  reasonable 
regard  for  his  own  safety.  It  was  his  du- 
ty to  exercise  his  judgment  as  to  whether 
he  could  probably  save  the  child  without 
serious  injury  to  himself.  If,  from  the 
appearances,  he  believed  that  he  could,  it 
was  not  negligence  to  make  an  attempt 
so  to  do,  although  believing  that  possi- 
bly he  might  fail  and  receive  an  injury 
himself.  He  had  no  time  for  deliberation. 
He  must  act  instantly,  if  at  all,  as  a  mo- 
ment's delay  would  have  been  fatal  to  the 
child.  The  law  has  so  high  a  regard  for 
human  life  that  it  will  not  impute  negli- 
gence to  an  effort  to  preserve  it,  unless 
made  under  such  circumstances  as  to  con- 
stitute rashness  in  the  judgment  of  pru- 
dent persons.  For  a  person  engaged  in 
his  ordinary  affairs,  or  in  the  mere  protec- 
tion of  property,  knowingly  and  volun- 
tarily to  place  himself  in  a  position  where 
he  is  liable  to  receive  a  serious  injury,  is 
negligence  which  w'ill  preclude  a  recovery 
for  an   injury  so   received;  but   when  the 


NEGLIGENCE, 


237 


as  given,  or  to  the  refusals  to  charge  as 
requested,  affect  the  right  of  recovery. 
Upon  tlie  principle  above  stated,  the 
judgment  appealed  from  must  be  affirmed, 
with  costs. 


exposure  is  for  the  purpose  of  saving  life 
it  is  not  wrongful,  and  therefore  not  neg- 
ligent, unless  such  as  to  be  regarded  ei- 
ther rash  or  reckless.  The  jury  were  war- 
ranted In  finding  the  deceased  free  from 
negligence  under  the  rule  as  above  stated. 
The  motion  for  a  nonsuit  was  therefore 
properly  ilenied.  That  the  jury  were  war- 
ranted in  finding  the  defendant  guilty  of 
negligence  in  running  the  train  in  the  man- 
ner it  was  runningrequires  no  discussion. 
None  of  the  exceptions  taken  to  the  charge 

(See,  also,  Spooner  v.  Railroad  Co.,  115  N.  Y.  22,  21  N.  E.  Rep.  696;  Linnehan  v.  Sampson,  126 Mass. 
506;  Penasylvania  Co.  v.  Roney,  89  Ind.  453;  Cottrill  v.  Railroad  Co.,  47  Wis.  634,  3  N.  W.  Rep.  376.) 


Church,  C.  J.,  and  Peckham  and  Rapal- 
Lo,  JJ.,  concur. 

Ai.LR.v,  J.,  wrote  a  dissenting  opinion, 
in  which  Folger,  J.,  concurred. 
Judgment  affirmed. 


IV.  LIABILITY  OF  A  MASTER  FOR  THE  NEGLIGENCE  OF  HIS 

SERVANT. 


(64  N.  Y.  129.) 
Rounds  v.  Delaware,  L.  &  W.  R.  Co. 

{Court  of  Appeals  of  Ne^o  York.     Feb.  1, 1876.) 

1.  Master  and  Servant  —  Liability  for  Wrong  j 

Done  bv  Servant. 
The  master  is  responsible  civiliter  for  the  \ 
wrongful  act  of  his  servant,  causing  injury  to  a  j 
third  person,  whether  the  act  was  one  of  negli- 
gence or  positive  misfeasance,  provided  the  serv- 
ant was  at  the  time  acting  for  the  master,  and 
within  the  scope  of  the  business  intrusted  to 
him;  and  if,  in  the  line  of  his  duty,  he  is  author- 
ized to  use  force,  the  master  commits  it  to  him  to 
decide  what  degree  of  force  he  shall  use,  and  is 
liable  if,  byhismisjudgmentand  violence  of  tem- 
per, a  degree  of  force  is  used,  even  though  will- 
fullj-and  recklessly,  which  is  not  required  by  the 
necessity  of  the  occasion,  and  a  third  person  is 
thereby  injured.  If,  however,  the  servant,  under 
guise  and  cover  of  executing  his  master's  orders, 
willfully  and  designedly,  for  the  purpose  of  ac- 
complishing his  own  independent,  malicious,  or 
wicked  purposes,  does  an  injury  to  another,  the 
master  is  not  liable. 

2.  Same. 

In  an  action  for  personal  injuries  received  by 
being  run  over  by  defendant's  train,  it  appeai-ed 
that  plaintiff,  a  boy  of  13  years,  wrongfully  on 
the  platform  of  defendant's  baggage-car,  being 
told  by  the  baggageman  to  get  off  while  the  train 
was  in  motion  in  the  switch-yard,  and  protest- 
ing on  account  of  the  danger  from  wood-piles 
lying  along  the  track,  was  kicked  off  by  the  bag- 
gageman, and,  striking  the  wood  pile,  rolled  un- 
der the  train  and  was  injured.  Defendant  had 
posted  rules  forbidding  all  persons  not  employes 
to  ride  on  the  baggage-car,  and  requiring  the 
baggageman  to  rigidly  enforce  them.  Held,  that 
it  was  a  question  for  the  jury  whether  the  bag- 
gageman acted  in  the  line  of  his  duty,  or  will- 
fully and  maliciously,  outside  of  and  in  excess  of 
his  duty,  and  a  finding  for  plaintiff  should  not  be 
disturbed. 

Appeal  from  supreme  court,  general 
term,  third  department. 

Action  by  (ieorge  M  Rounds,  by  guard- 
ian, etc.,  against  the  Delaware,  Lacka- 
wanna &  Western  Railroad  Company,  for 
injuries  sustained  by  plaintiff  by  being 
kicked  off  of  one  of  defendant's  baggage- 
cais  by  the  baggageman.  Plaintiff,  a  boy 
12  years  of  age,  jumped  on  the  platform  of 
the  baggage-car  in  an  empty  train  while 
it  was  being  switched  in  defendant's j-ard, 
and,  being  found  l)y  the  baggageman 
while  the  train  was  in  motion,  was  or- 
dered off;  but,  being  unable  to  jump  off 
without  great  danger  from  wood-piles  on 
the  side  of  the  track,  told  the  baggageman 


of  such  fact;  whereupon  the  baggageman 
kicked  him  off,  and  plaintiff,  striking 
against  the  wood-[)ile,  rolled  under  the 
car,  and  his  leg  was  crushed.  A  printed 
notice  was  posted  up  in  the  baggage-car, 
and  another  near  where  plaintiff  was 
standing,  as  follows:  "  No  person  will  be 
allowed  to  ride  on  the  baggage-car  except 
the  regular  trainmen  employed  thereon. 
Conductor  and  baggageman  must  see  this 
order  strictly  enforced.  "  The  posted  time- 
cards  contained  another  notice,  as  fol- 
lows: "Train  baggagemen  must  not  per- 
mit any  person  to  ride  in  the  baggage-car 
except  the  conductor  and  newsagent  con- 
nected with  the  train.  Conductor  an(' 
baggageman  will  l)e  held  alike  accounta- 
ble for  a  rigid  enforcement  of  this  rule." 
Defendant  asked  a  nonsuit  on  the  ground 
that  plaintiff  was  a  trespasser,  and  was 
guilty  of  contributory  negligence,  and  that 
the  act  of  the  baggageman  was  willful 
and  outside  the  line  of  his  employment; 
which  the  court  denied,  ruling  that  it  was 
a  question  for  the  jury  whether  the  bag- 
gageman was  acting  within  the  authority 
of  the  company  in  putting  plaintiff  off,  and 
whether  he  acted  willfully  and  wrongfullj', 
to  which  defendant  excepted.  The  court 
charged  the  jury  that  plaintiff  was  a  tres- 
passer on  the  car,  but  if  the  baggageman, 
nevertheless,  in  the  discharge  of  his  duty, 
pushed  him  off  the  train  in  an  improper 
manner,  and  at  a  dangerous  place,  defend- 
ant was  liable;  and  also  that,  if  the  bag- 
gageman ])ushed  plaintiff  off  the  train, 
and,  in  doing  so,  was  acting  as  the  em- 
ploye of  defendant,  in  good  faith,  in  the 
discharge  of  a  duty  he  owed  the  com- 
pany, defendant  would  be  liable  for  the 
careless  and  negligent  discharge  of  duty; 
hut  if  he  was  acting  willfully  and  mali- 
ciously towards  plaintiff,  outside  of  and 
in  excess  of  his  dut^-,  then  thebaggageman 
alone  would  be  responsible  in  law  for  the 
consequences;  to  which  defendant  except- 
ed, and  reipiested  the  court  to  modify  the 
charge,  or  to  charge  that  dpfendant  waa 
not  liable  if  thebaggageman  acted  willfully 
and  wantonly,  without  authority-  from 
defendant.  Verdict  and  judgment  for 
plaintiff.  On  appeal  the  judgment  was 
affirmed  by  the  general  term.  3  Hun,  329. 
Defendant  again  appealed. 

Francis  Kevnaii.  for  appellant.     E.   H. 
Prindle,  for  respondent. 


238 


LAW  OF  TORTS. 


Andrews,  J,  There  is,  at  this  time,  but 
little  ronfiict  of  judicial  opinion  in  respect 
to  the  general  rule  by  whicli  the  liability 
of  a  master  for  the  misconduct  of  his  serv- 
ant, resulting  in  injury  to  third  persons, 
is  to  lie  tested  and  ascertained.  In  Hig- 
gins  V.  Turnpike  Co.,  46  N.  Y.  23.  this  sub- 
ject was  considered  by  this  court,  and  the 
rule  was  declared  to  be  that  the  master 
was  responsible  civiliter  for  the  wrongful 
act  of  the  servantcausing  injury  to  a  third 
person,  whether  the  act  was  one  of  negli- 
gence or  positive  misfeasance,  provided 
the  servant  was  at  the  time  acting  for  the 
master  and  withiii  the  scope  of  the  busi- 
ness intrusted  to  him.  The  master  is  lia- 
ble only  for  the  authorized  acts  of  the 
servant,  and  the  root  of  his  liability  for 
the  servant's  acts  is  his  consent,  express 
or  implied,  thereto.  When  the  master  is 
to  be  considered  as  having  authorized  the 
wrongful  act  of  the  servant,  so  as  to  make 
him  liable  for  his  misconduct,  is  the  point 
of  difficulty.  Where  authority  is  conferred 
to  act  for  another,  without  special  limita- 
tion, it  carries  with  it,  by  implication,  au- 
thority to  do  all  things  necessary  to  its 
execution;  and  when  it  involves  the  exer- 
cise of  the  discretion  of  the  servant,  or  the 
use  of  force  towards  or  against  another, 
the  use  of  such  discretion  or  force  is  a  part 
of  the  thing  authorized;  and  when  exer- 
cised becomes,  as  to  third  persons,  the  dis- 
cretion and  act  of  the  mastei  ;  and  this, 
although  the  servant  departed  from  the 
private  instructions  of  the  master,  provid- 
ed he  was  engaged  at  the  time  iu  doing 
his  master's  business,  and  was  acting 
within  the  general  scope  of  his  employ- 
jnent.  It  is  not  the  test  of  the  master's 
liability  for  the  wrongful  act  of  the  serv- 
ant, from  which  injury  to  a  third  person 
has  resulted,  that  he  expressly  authorized 
the  particular  act  and  conduct  which  oc- 
casioned it.  In  most  cases,  where  the 
master  has  been  held  liable  for  the  negli- 
gent or  tortious  act  of  the  servant,  the 
servant  acted,  not  only  without  express 
authority  to  do  the  wrong,  but  in  viola- 
tion of  his  duty  to  the  master. 

It  is,  in  general,  sufficient  to  make  the 
master  responsible  that  he  gave  to  the 
servant  an  anthoritj^  or  made  it  his  duty 
to  act  in  respect  to  the  business  in  which 
he  was  engaged  when  the  wrong  was 
committed,  and  that  the  act  complained 
of  was  done  in  the  course  of  his  emploj'- 
ment.  The  master  in  that  case  will  be 
deemed  to  have  consented  to  and  author- 
ized the  act  of  the  servant,  and  he  will  not 
be  excused  from  liability,  although  the 
servant  abused  his  authority,  or  was  reck- 
less in  the  performance  of  his  duty,  or  in- 
flicted an  unnecessary  injury  in  executing 
his  master's  orders.  The  master  who  puts 
the  servant  in  a  place  of  trust  or  responsi- 
bility, or  commits  to  him  the  manage- 
ment of  his  business  or  the  care  of  his 
property,  is  justly  held  responsible  when 
the  servant,  through  lack  of  judgment  or 
discretion,  or  from  infirmity  of  temper,  or 
under  the  influence  of  passion  aroused  bj' 
the  circumstances  and  the  occasion,  goes 
beyond  the  strict  line  of  his  dutj' or  au- 
thority, and  inflicts  an  unjustifiable  injury 
upon  another.  Butit  is  said  that  tlie mas- 
ter is  not  responsible  for  the  willful  act  of 


the  servant.  This  is  the  language  of  some 
of  the  cases,  and  it  becomes  necessary  to 
ascertain  its  meaning  when  used  in  defin- 
ing the  master's  responsibility. 

The  case  of  McManus  v,  Crickett,  1  East, 
106,  turned  upon  the  form  of  the  action, 
and  the  distinction  between  trespass  and 
case;  but  Lord  Kenyon  in  pronouncing 
the  judgment  of  the  court  said  ;  "Where  a 
servant  quits  sight  of  the  object  for  which 
he  was  emploj-ed,  and,  without  having 
in  view  his  master's  orders,  pursues  that 
which  his  own  malice  suggests,  his  mas- 
ter will  not  be  liable  for  such  acts."  This 
language  was  cited  with  approval  in 
Wright  V.  Wilcox,  19  Wend.  343;  and  the 
master  was  held  not  to  be  responsible 
where  the  servant,  in  driving  his  master's 
wagon  along  the  highway,  willfully 
whipped  up  his  horses  while  the  plaintiff's 
son,  a  young  lad,  was  standing  between 
the  front  and  back  wheels,  attempting, 
with  the  implied  permission  of  the  serv 
ant,  to  get  into  the  wagon,  iu  conse- 
quence of  which  the  boy  was  thrown 
down,  run  over,  and  injured.  The  serv- 
ant was  cautioned  by  a  by-stander  that  if 
he  did  not  stop  he  would  kill  the  boy. 
The  court,  in  the  opinion  delivered,  as- 
sumed that  the  evidence  showed  that  the 
servant  whipped  up  the  horses  with  a 
willful  design  to  throw  the  boy  off.  The 
act  of  the  servant  was  imminently  dan- 
gerous, and  it  might  reasonably  be  in- 
ferred from  the  evidence  that  he  designed 
the  injury  which  resulted  from  it.  "The 
law,"  said  Cowen,  J.,  "holds  such  a  will- 
ful act  a  departure  from  the  master's  busi- 
ness." So  in  Vanderbilt  V.  Turnpike  Co., 
2  N.  Y.  479,  the  master  of  the  defendant's 
boat  intentionally  ran  into  the  boat  of 
the  plaintiff,  and  the  court  held  that  this 
was  a  willful  trespass  of  the  master,  for 
which  the  defendant  was  not  liable.  In 
Lyons  v.  Martin,  8  Adol.  &  E.  .512,  it  was 
held  that  where  a  servant,  merelj'  au- 
thorized to  distrain  cattle  damage-feas- 
ant,  drives  cattle  from  the  highway  into 
his  master's  close,  and  there  distrains 
them,  the  master  is  not  liable.  In  Mali  v. 
Lord,  39  N.  Y.  3S1,  the  act  complained  of 
was  an  illegal  imprisonment  of  the  plain- 
tiff by  the  servant  of  the  defendant,  and 
the  court  held  that  the  authority  to  do 
the  act  could  not  be  implied  from  the  gen- 
eral employment  of  the  servant.  The  im- 
prisonment, assuming  that  the  suspicion 
upon  which  it  was  made  was  well  found- 
ed, was  illegal.  The  master  could  not 
lawfully  have  detained  the  defendant  if 
he  had  been  present,  and  the  court  were 
of  the  opinion  that  the  servant  could  not 
be  said  to  be  engaged  in  his  master's  busi- 
ness when  he  assumed  to  do  what  the  mas- 
ter could  not  have  done  himself.  See,  al- 
so, Bolingbroke  v.  Local  Board,  etc.,  L. 
R.  9  C.  P.  575.  It  is  quite  useless  to  at- 
tempt to  reconcile  all  the  cases.  The  dis- 
crepancy between  them  arises  not  so 
much  from  a  difference  of  opinion  as  to 
the  rule  of  law  on  the  subject  as  from  its 
application  to  the  facts  of  a  given  case. 

It  seems  to  be  clear  enough  from  the 
cases  in  this  State  that  the  act  of  the  serv- 
ant causing  actionalile  injury  to  a  third 
person  does  not  subject  the  master  to  civil 
responsibility   in   all  cases    where    it  ap- 


NEGLIGENCE. 


239 


pears  that  the  servant  was  at  the  time  '  liave  the  court  rule,  as  matter  of  law, 
in  the  use  of  his  mastr,'r's  property,  or  be-  ,  that,  ui)on  tlie  circumstances  as  shown 
cause  the  act,  in  some  {reuerai  sense,  was  :  by  the  evidence  on  the  part  of  the  plain- 
done  while  lie  wasdcjinjj:  liis  master's  busi-  tiff,  the  dcfenduut  was  not  responsible.  It 
ness,  irresi)ective  of  tiie  real  nature  and  is  conceded  tiiat  the  removal  of  the  plain- 
motive  of   the  transaction.     On  the  other   tiff  from   the  car  was  within  the  scope  of 


hand,  the  master  is  not  exempt  from  re- 
sponsibility in  all  cases  on  showing  that 
the  servant,  without  authoritj',  designed 
to  do  the  act  or  the  injury  complained  of. 
If  he  is  authorized  to  use  force  against 
another,  when   necessary  in   executing  his 


the  authority  conferred  upon  the  bag- 
gageman. The  plaintiff  had  no  right  to 
be  there.  He  was  not  a  passenger  or 
servant,  and  had  no  express  or  implied 
permission  to  be  upon  the  car.  The 
baggageman,  in  kicking  the  ijoy  from  the 


master's  orders,  the  master  commits  it  platform,  acted  violently  and  unreason- 
to  him  to  decide  what  degree  of  force  he  ably;  and  to  do  this  while  the  car  was  in 
shall  use;  and  if,  through  misjudgment  motion,  and  when  the  spacu  between  it 
or  violence  of  temper,  he  goes  beyond  the  and  the  wood-pile  was  so  small,  was 
necessity  of  the  occasion,  and  gives  a  j  dangerous  in  the  extreme.  But  the  court 
right  of  action  to  another,  he  cannot,  as  could  not  say  from  the  evidence  that  the 
to  third  persons,  be  said  to  have  been  acting   baggageman  was   acting   outside  of  and 


wirhout  the  line  of  his  dut3',  or  to  have 
departed  from  his  master's  business.  If, 
however,  the  servant,  under  guise  and 
cover  of  executing  his  master's  orders,  and 
exercising   the   authority   conferred    upon 


without  regard  to  his  employment,  or 
designed  to  do  the  injury  which  resulted, 
or  that  the  act  was  willful,  within  the  rule 
we  have  stated.  If  the  master,  when 
sued  for  an  injury  resulting  from    the   tcir- 


him,  willfully  and  designedly,  for  the  pur-  [  tious  act  of  his  servant  while  apjjarently 
pose  of  accomplishing  his  own  independ-  engaged  in  executing  his  orders, claims  ex  • 
ent,  malicious,  or  wicked  purposes,  does  emption  upon  the  ground  that  the  serv- 
an  injury  to  another,  then  the  master  is  j  ant  was,  in  fact,  pursuing  his  own  pur- 
not  liable.  The  relation  of  master  and  poses,  without  reference  to  his  master's 
servant,  as  to  that  transaction,  does  not  business,  and  was  acting  maliciously  and 
exist  between  them.  It  is  a  willful  and  willfully,  it  must,  ordinarily,  be  left  to 
wanton  wrong  and  tresjiass,  for  which  |  the  jurj-  to  determine  this  issue  upon  a 
the  master  cannot  be  held  responsible ;  i  consideration  of  all  the  facts  and  circum- 
and,  when  it  is  said  that  the  master  is  '  stances  proved.  See  Jackson  v.  Railroad 
not  I'esponsible  for  the  willful  wrong  of  I  Co.,  47  N.  Y.  274.  There  may  be  cases 
the  servant,  the  language  is  to  be  under- 1  where  this  rule  does  not  apply,  and  where 
stood   as   referring   to   an  act  of  positive  |  the  court    would    be  justified   in    taking 


and  designed  injury,  not  done  with  a 
view  to  the  master's  service  or  for  the 
purpose  of  executing  his  orders.  In  this 
view,  the  judge  at   tlie   trial   correctly   re- 


the  case  from  the  jury;  but  where  differ- 
ent inferences  maybe  drawn  from  the  facta 
proved,  and  when,  in  one  view,  they  may 
be  consistent  with  the  lial)ilityof  the  mas- 


fused  to  qualify  his  cliarge,  or  to  charge  I  ttr,  the  case  must  be  left  to  the  jury.  The 
thatitwas  sufficient  to  exenijttthe  defend-  fact  that  the  plaintiff  was  a  trespasser  on 
ant  from  liability  that  the  act  of  the  bag- '  the  cars  is  not  a  defense.  The  lad  did  not 
gageman  in   putting   the   plaintiff  off  the  I  forfeit   his   life,   or  subject   himself  to  the 


car  was  willful.  He  had  already  charged 
that  if  the  baggageman  acted  "willfullj" 
and  maliciously  towards  the  plaintiff,  out- 
side of  and  in  excess  of  his  duty,"  in  put- 
ting him  off  thecar,  the  defendant  was  not 
liable.  If  the  counsel  intended  to  claim  that 
the  defendant  was  exempt  from  respon- 
sibility if  the  baggageman  acted  williul- 
ly,  although  without  malice,  the  point 
was  not  well  taken.  That  the  baggageman 
designed  to  put  the  plaintiff  off  the  car 
was  not  disputed,  and  this  was  consist- 
ent with  the  authority  and  duty  intrust- 
ed to  him.  But  a  willful  act  uhich  will 
exempt  a  master  from  liability  for  the  tort 
of  his  servant  must  be  done  outside  of  his 
duty  and  his  master's  business.  The 
charge  was  therefore  strictly  correct,  and 
the  exception  was  not  well  taken. 
Neither   was   the  defendant  entitled   to 


loss  of  his  limbs,  because  he  was  wrong- 
fully on  the  car.  The  defendant  owed 
him  no  duty  of  care  by  reason  of  any  spe- 
cial relation  assumed  or  existing  between 
the  company  and  him,  but  he  was  enti- 
tled to  be  protected  against  unnecessary 
injury  by  the  defendant  or  its  servants  in 
exercising  the  right  of  removing  him,  and 
especially  from  the  unnecessary  and  unjus- 
tifiable act  of  the  baggageman  by  which  his 
life  was  put  in  peril,  and  which  resulted 
in  his  losing  his  limb.  Scinford  v.  Rail- 
road Co..  23  N.  Y.  343;  Lovett  v.  Railroad 
Co.,  9  Allen,  557;  Holmes  v.  Wakefield,  12 
Allen,  580. 

No  error  of  law  was  committed  on  the 
trial,  and  the  judgment  of  the  general 
term  should  be  affirmed,  with  costs.  All 
concur. 

Judgment  aflSrmed. 


(See,  also,  Mott  v.  Ice  Co.,  73  N.  Y.  543;  QuIdd  v.  Power,  87  N.  Y.  535;  Limpus  v.  Omnibus  Co.,  1 
Hurl.  &,  C.  5-26;  Mitchell  v.  Crassweller,  13  C.  B.  237;  Cavanagh  v.  Dinsmore,  12  Hun,  465;  Howe  v. 
Newmarch,  12  Allen,  49;  Walton  v.  Car  Co.,  139  Mass.  556,  2  N.  E.  Rep.  101;  Stone  v.  HiUs,  45  Conn. 
44;  RaUroad  Co.  v.  Derby,  14  How.  468.) 


240 


LAW  OF  TOUTS. 


V.  LIABILITY  OF  AN  EMPLOYER  FOR  THE  NEGLIGENCE  OF  A 

CONTRACTOR. 


(101  N.  Y.  377,  4  N.  E.  Rep.  755.) 

Hkxamer  v.  Wp:bb. 

(CoiiH  of  Airpcals  of  Xew  York.    Feb.  9,  1886.) 

1.  Negligence  —  Liability  of  Employer —  Con- 

TKACTOR   OR   SeRVAXT. 

It  is  not  enough,  in  order  to  establish  the  lia- 
bility of  one  person  for  the  negligence  of  another, 
to  show  that  the  person  whose  negligence  caused 
the  injury  was,  at  the  time,  acting  under  an  em- 
ployment by  the  person  who  is  sought  to  be 
charged.  It  must  be  shown,  in  addition,  that 
the  employment  created  the  relation  of  master 
and  servant  between  them, 
a.  Same. 

Defendant  employed  a  person  engaged  in  the 
roofing  and  cornice  business  to  fix  the  cornice  on 
his  building  so  as  to  prevent  pigeons  making 
their  nests  under  the  eaves  of  the  roof,  the  mode 
in  which  it  was  to  be  done  and  the  means  to 
be  employed  being  left  entirely  to  him,  and  no 
price  being  fixed.  Held,  that  such  person  was 
an  independent  contractor,  and,  tor  injuries 
caused  to  third  persons  by  the  negligent  construc- 
tion of  the  scaffold  used  in  the  work,  defendant 
was  not  liable. 

3.  Same— Nuisance. 

A  scaffold,  constructed  by  suspending  a  ladder 
from  the  roof  of.  a  building,  for  the  purpose  of 
making  improvements  thereon,  the  building  be- 
ing 15  feet  from  the  line  of  the  sidewalk,  is  not 
pej'  se  a  nuisance. 

4.  Same— City  Ordinance. 

A  scaffold  suspended  from  the  roof  of  a  build- 
ing, for  the  purpose  of  making  repairs  thereto, 
not  over  the  line  of  the  sidewalk,  is  not  within 
the  meaning  of  a  city  ordinance  forbidding  the 
hanging  of  any  goods,  wares,  and  merchandise, 
or  any  other  thing,  in  front  of  any  building. 

Appeal  from  court  of  common  pleas  of 
city  anrl  county  of  New  York,  general 
terra . 

Action  by  Bianca  Hexamer  against 
William  H.'Webb  for  injuries  caused  by 
the  alleged  negligence  of  defendant.  The 
complaint  was  dismissed  at  the  trial.  The 
general  term  aftirmed  the  judgment  of  dis- 
missal, and  plaintiff  appealed. 

/.  T.  Williams,  for  appellant.  George  S. 
Hamlin,  for  respondent. 

Miller,  J.  This  action  was  brought 
by  the  plaintiff  to  reco%^er  damages  alleged 
to  have  beensustainedby  means  of  the  neg- 
ligence of  defendant's  agents  and  servants 
in  making  repairs  and  improvements  up- 
on the  hotel  of  the  defendant,  situated  in 
the  city  of  New  York.  The  alleged  negli- 
gence consisted  in  fixing  and  securing  the 
staging  used  in  performing  the  work,  and 
the  proof  showed  that  the  ladder,  used  as 
a  scaffold,  was  suspended  from  the  roof, 
over  the  eaves  of  the  hotel,  and  that  upon 
It  were  placed  planks  which  were  used  as 
a  platform  upon  which  the  workmen  em- 
ployed stood  to  do  the  work.  This  scaffold 
was  moved  from  time  to  time,  around  the 
bay  windows,  from  place  to  place.  A 
heavy  wind  was  blowing,  and,  while  shift- 
ing the  ladder,  a  gust  came,  and  the  work- 
ing of  the  wind  and  the  grating  against 
the  cornice  and  wall  cut  the  rope  which 
held  the  planks  on  the  ladder,  and  the 
wind  turned  the  planks  up  so  that  they 
fell,  and  one  of  them,  in  falling  to  the  side- 
walk, bounded,  and  struck   the  plaintiff. 


One  Burford,  who  was  engaged  in  the 
roofing  and  cornice  business,  was  em- 
ployed by  the  defendant  to  do  the  work, 
which  was  intended  to  obviace  a  difficulty 
caused  by  the  pigeons  making  their  nests 
under  the  eaves  of  the  roof  of  the  hotel. 
At  the  close  of  the  testimony  a  motion 
was  made  to  dismiss  the  complaint,  u[)on 
the  ground,  among  others,  that  if  there 
was  proof  of  negligence  it  was  not  the 
negligence  of  the  defendant,  or  his  agents 
or  servants,  but  of  an  independent  con- 
ti'actor;  and  the  plaintiff's  counsel  then 
asked  to  go  to  the  jury  upon  several 
grounds,  which  were  stated  and  refused. 
The  motion  to  dismiss  the  complaint  was 
granted,  and  the  defendant's  counsel  ex- 
cepted to  the  decision  of  the  court. 

The  employment  of  Burford  was  of  a 
general  character,  and  the  contract  be- 
tween him  and  the  defendant  was  not 
rpstricted  as  to  time  or  amount,  or  the 
specific  services  which  were  t(i  be  ren- 
dered. The  accident  occui'red  while  Bur- 
ford and  his  men  were  engaged  in  the  per- 
formance of  this  work,  and  this  action 
was  sought  to  be  maintained  upon  the 
ground  that  the  workmen  employed,  in- 
cluding Burford,  were  the  servants  of  the 
defendant,  and  that  the  defendant,  as 
owner  of  the  real  estate,  was  responsible 
to  third  persons  for  the  carelessness,  neg- 
ligence, or  want  of  skill  in  those  who  were 
carrying  on  or  conducting  the  business; 
and  this,  whether  the  persons  employed 
were  working  for  wages  or  on  contract. 
We  think  that  the  principle  laid  down  has 
no  application  to  the  facts  presented  in 
the  case  at  bar.  As  a  general  rule,  whei-e 
a  person  is  employed  to  perform  a  certain 
kind  of  work,  in  the  nature  of  repairs  or 
improvements  to  a  building,  by  the  owner 
thereof,  which  requires  the  exercise  of 
skill  and  judgment  as  a  mechanic,  the  exe- 
cution of  which  is  left  entirely  to  his  dis- 
cretion, with  no  restriction  as  to  its 
exercise,  and  no  limitation  as  to  the  au- 
thority conferred  in  respect  to  the  same, 
and  no  provision  is  especially  made  as  to 
the  time  in  which  the  work  is  to  be  done, 
or  as  to  the  payment  for  the  services  ren- 
dered, and  the  compensation  is  dependent 
upon  the  value  thereof,  such  person  does 
not  occupy  the  relation  of  a  servant  un- 
der the  control  of  the  master,  but  he  is  an 
independent  contractor,  and  the  owner 
is  not  liable  for  his  acts,  or  the  acts  of  his 
workmen  who  are  negligent  and  the 
cause  of  injury  to  another.  If  the  owner 
of  a  building  employs  a  mechanic  to  make 
repairs  upon  the  same,  without  any  spe- 
cific arrangement  as  to  terms  and  condi- 
tions, such  emi)]oyment  is  in  the  nature 
of  an  independent  contract,  which  im- 
poses upon  the  employee  theresponsibility 
incurred  by  acts  of  negligence  caused  by 
himself,  or  those  who  are  aiding  him  in 
the  performance  of  the  work.  It  is  abso- 
lutely essential,  in  order  to  establish  a  lia- 
bility against  a  party  for  the  negligence  of 
others,  that  the  relation  of  master  and 
servant  should  exist. 

In  King  v.  Eailroad  Co.,  66  N.Y.ISI,  184, 


NEGLIGENCE. 


241 


the  rule  applicable  to  such  a  case  is  laid 
down  by  Andriows,  J.,  as  follows:  "It  is 
not  enough,  in  oi'dei'  to  establisii  the  lia- 
bility of  one  person  for  the  neglii^ence  of 
another,  to  show  tiiat  the  person  whose 
neft-ii.ijcence  caused  the  injury  was,  at  the 
time,  acting  under  an  eiuployment  by  the 
person  who  is  sougiit  to  be  charged.  It 
must  be  shown,  in  addition,  tliat  the  em- 
ployment created  the  relation  of  master 
and  servant  between  them.  Unless  the  rela- 
tion of  inaster  and  servant  exists,  the  law 
■will  not  impute  to  one  person  the  negligent 
act  of  another,  "  In  the  case  considered  we 
think  that,  by  the  contract  between  the 
defendant  and  Burford,  the  relation  of 
master  and  servant  was  not  created. 
Burford  was  a  mechanic,  engaged  in  a 
particular  kind  of  l)usiness,  which  quali- 
fied him  for  the  performance  of  the  work 
which  he  was  employed  to  do.  By  the 
arrangement  with  the  defendant,  he  was 
an  independent  contractor,  engaged  to 
perform  the  work  in  question.  He  was 
employed  to  accomijlish  a  particular  ob- 
ject by  obviating  the  difficulty  which  he 
sought  to  remove.  The  mode  and  man- 
ner in  which  it  was  to  be  done,  and  the 
means  to  be  employed  in  its  accomplish- 
ment, were  left  entirely  to  his  skill  and  judg- 
ment. Everything  connected  with  the 
work  was  wholly  under  his  direction  and 
control.  No  right  was  reserved  to  the 
defendant  to  interfere  with  Burford  or  the 
conduct  of  the  work.  It  w^as  the  result 
which  was  to  be  attained  that  was  pro- 
vided for  by  the  contract,  without  any 
particular  method  or  means  by  which  it 
was  to  be  accomplished.  So  long  as  the 
contractor  did  the  work,  the  defendant 
liad  no  right  to  interfere  with  his  way  of 
doing  it.  The  fact  that  no  pr'ce  was 
fixed,  and  no  si)ecifications  matle  as  to 
the  work  to  be  done,  did  not  render  the 
contract  one  of  mere  hire  and  service,  or 
create  the  relation  of  master  and  servant 
between  the  parties.  It  cannot,  we  think, 
be  said  that  Burford  did  not  agree  to  do 
the  work  required  of  him,  and  that  no  con- 
tract \Aas  made.  After  thesubject-matter 
and  the  difficulties  attending  the  work  had 
been  considered  and  talked  about,  Bur- 
ford said  he  would  try  and  do  something, 
and  the  defendant  replied  that  he  did  not 
care  how  he  did  ir.  The  conversation  had 
amounted  in  law  to  an  agreement  that 
Burford  would  perform  all  the  work  that 
was  required  of  him,  according  to  his  own 
judgment  as  to  what  was  necessary  to  be 
done  to  acconiplish  the  object  intended. 
He  was  an  independent  contractor,  and 
the  men  employed  by  him  were  his  serv- 
ants, and  had  nothing  to  do  with  the  de- 
fendant. Burford  was  not  the  agent  of  the 
defendant,  in  any  sense,  in  jmrchasing  the 
material,  ov  in  hiring  the  men  to  do  the 
wf)rk.  That  the  work  was  charged  for  by 
th(>  day  could  make  no  difference,  an 3  did 
not  alter  the  position  which  Burford  occu- 
pied, in  reference  to  the  defendant,  as  an 
independent  contractor.  It  did  not  give 
the  defendant  control  over  the  job,  or  au- 
thority to  hire  or  discharge  the  men,  or 
render  him  in  any  way  liable  to  them  in- 
wtead  of  Burford.  It  is  very  evident  that 
the  men  employed  were  the  servants  of 
Burford,  and  therefore  the  defendant  can- 
CUASE — 16 


not  be  made  responsible  for  their  negli- 
gence. The  test  to  determine  whether  one 
who  renders  service  to  another  does  so 
as  a  contractor  or  not  is  to  ascertain 
whether  he  renders  the  service  in  the 
course  of  an  independent  occupation, 
representing  the  will  of  his  employer  only 
as  to  the  result  of  his  work,  and  not  as  to 
the  means  by  which  it  is  accomplished. 
Shear,  ifc  R.  Neg.  §  70. 

In  Blake  v.  Ferris,  5  N.  Y.  5S,  within  the 
rule  last  stated,  it  is  held  that  when  a 
man  is  employed  in  doing  a  job  or  piece  of 
work  with  his  ov^-n  means  and  his  own 
men,  and  employs  others  to  help  hinj  or 
to  execute  the  work  for  him,  and  under  his 
control,  he  is  the  superior  who  is  respon- 
sible for  their  conduct,  no  matter  for 
whom  he  is  doing  the  work.  To  attempt 
to  make  the  primary  principal  or  employ- 
er responsible  in  such  cases  would  be  an 
attempt  to  push  the  doctrine  oi  respondeat 
superior  beyond  the  reason  on  which  it  is 
founded.  Upon  these  authorities,  there 
would  seem  to  be  no  question  as  to  the 
character  of  Burford's  employment. 

We  are  referred  by  the  learned  counsel 
for  the  appellant  to  numerous  authorities 
as  upholding  the  doctrine  that  Burford 
was  not  engaged  in  an  independent  employ- 
ment, and  that  the  defendant  was  there- 
fore liable.  After  a  careful  examination, 
we  are  satisfied  that  none  of  them  sustain 
this  position.  Those  cited  from  this  state 
are  certainly  in  a  contrary  direction.  The 
other  cases  cited  are  clearly  distinguisha- 
ble from  the  case  at  bar,  and  establish  no 
rule  adverse  to  that  which  is  supported,  aa 
we  have  seen,  by  the  authorities  in  this 
state. 

The  claim  that  the  ladder  or  scaffold 
suspended  under  the  eaves  of  the  hotel 
was  a  nuisance  is  not  well  founded.  The 
proof  on  the  trial  did  not  show  that  the 
building  was  on  the  line  of  the  street.  It 
did  show  that  the  hotel  was  separated 
from  the  sidewalk  by  an  area  of  15  feet. 
Without  further  proof,  it  is  difficult  to  see 
hovv  the  ladder  or  staging  could  be  re- 
garded as  such  an  obstruction  to  the 
street  as  to  constitute  a  nuisance.  The 
action  is  based  upon  the  ground  of  negli- 
gence, and  there  is  nothing  in  the  com  plaint 
alleging  that  the  scaffold  was  suspended 
over  the  sidewalk,  or  was  in  any  respect  an 
obstruction  to  the  street.  The  gist  of  the 
action  is  negligence  and  unskillfulness  in 
the  construction  of  the  scaffolding.  It 
may  be  added  that  the  scaffold  itself  was 
suspended  for  a  legitimate  purpose,  con- 
nected with  the  reparation  and  improve- 
ment of  the  building.  It  was  not  neces- 
sarily injurious  and  dangerous,  or  an  ob- 
struction on  the  street;  and,  if  properly 
used,  might  well  be  employed  for  the  pur- 
pose intended.  It  could  only  become  dan- 
gerous by  being  impro[)erly  constructed, 
or  by  some  wrf)ngful  and  willful  act.  la 
view  of  all  the  facts,  it  cannot,  we  think, 
bemaintained  that  thescaffold  necessarily 
was  a  nuisance. 

The  claim  that  the  ladder  was  suspend- 
ed in  violation  of  the  city  ordinance  is  not 
\%  ell  founded.  The  ordinance  referreii  to 
prohibits  the  hanging  of  any  goods,  wares, 
merchandise,  or  any  other  thing,  in  front 
of  an^'  building  at  a  greater  distance  than 


242 


LAW  OF  TORTS. 


one  foot.  The  ordinance  was  aimed 
against  the  obstruction  of  the  streets.  It 
is  not  apparent  that  the  ladder  overhung 
the  street;  but,  even  if  such  was  the  case, 
it  was  a  mere  temporary  structure,  erect- 
ed for  the  purpose  of  repairing  tl)e  build- 
ing, and  not  an  obstruction  within  the 
meaning  and  spirit  of  the  ordinance, 
which  it  is  manifest  was  directed  against 
goods,  etc.,  which  were  exposed  for  sale, 
or  for  the  purpose  of  attracting  public  at- 
tention thereto.  The  construction  con- 
tended for  would  prevent  the  use  of  scaf- 
folds in  the  reparation  of  buildings,  which 
never  could  have  been  intended. 

It  is  also  insisted  that  the  work  in  ques- 
tion was  intrinsically  dangerou.s,  and 
hence  the  party  authorizing  it  would  be 
liable,  whether  he  did  the  work  himself  or 
let  it  out  on  contract.  The  answer  to 
this  position  is  that  the  work  itself  was 
not  necessarily  injurious  or  dangerous.  It 
was  merely  necessary'  repairs  or  improve- 
ments for  the  benefit  of  the  building, 
which,  under  ordinary  circumstances, 
could  be  made  without  any  serious  results. 
The  accident  was  caused  by  a  gust  of 
wind,  which  might  well  occur  in  the  per- 
formance of  any  work  of  a  similar  charac- 
ter, and  which  could  not  well  be  guarded 
against  or  provided  for.  The  act  itself 
could  only  become  dangerous  and  cause 
injury  by  some  unforeseen  circumstance, 
and  the  rule  stated  is  not  applicable. 

There  is,  we  think,  no  force  in  the  posi- 


tion that  the  injury  complained  of  was 
the  result  of  an  act  absolutelj'  necessary 
for  the  contractor  to  do  in  order  to  ac- 
complish the  desired  end,  and  the  sus- 
pending of  the  ladder  may  therefore  be 
said  to  have  been  done  bj'  the  defendant, 
and  he  is  liable,  although  it  was  done  by 
an  independent  contractor.  It  is  appar- 
ent, from  the  evidence,  that  the  injury  re- 
sulted, not  from  anj' thing  contracted  for 
by  the  defendant,  but  something  collat- 
eral thereto.  The  defendant's  contract 
related  to  the  improvement  of  the  building 
alone.  What  was  necessari'  to  be  done 
for  that  purpose,  and  the  manner  in 
which  it  should  be  done,  rested  with  the 
skill  and  judgment  of  the  contractor.  The 
defendant  was  absent  at  the  time,  and 
had  no  knowledge  of  what  was  done,  or 
the  manner  in  which  it  was  done.  The 
doing  of  the  work,  and  the  mode  in  which 
it  was  to  be  accomplished,  were  matters 
collateral  to  the  contract  between  the  de- 
fendant and  Burford.  For  these  the  de- 
fendant could  not  be  held  responsible. 

After  a  careful  consideration  of  the  ques- 
tions presented,  it  follows  that  no  error 
was  committed  by  the  judge  in  dismissing 
the  complaint,  or  in  his  refusal  to  allow 
the  case  to  go  to  the  jury ;  nor  did  he  err, 
upon  the  trial,  in  striking  out  the  testi- 
mony given  as  to  the  declaration  of  oneof 
the  witnesses  sworn  upon  the  trial.  The 
judgment  should  be  attirmed.     All  concur. 

Judgment  affirmed. 


(See,  also,  Cuff  v.  Railroad  Co.,  35  N.  J.  Law,  17;  Hilliard  v.  Richardson,  3  Grav,  349;  Chicago  v. 
Robbins,  2  Black,  418;  Edmundson  v.  Railroad  Co.,  Ill  Pa.  St.  316,  2  Atl.  Rep.  404;  Railroad  Co.  v. 
Hanning,  15  Wall.  649;  Overton  v.  Freeman,  11  C.  B.  867;  McCaflerty  v.  Railroad  Co.,  61  N.  Y.  178; 
Ellis  V.  Gas  Co.,  2  El.  &  Bl.  767.) 


VI.  LIABILITY  OF  MASTER  TO  HIS  SERVANT. 


(99  N.  Y.  363,  2  N.  E.  Rep.  24.) 

Pantzar  v.  Tilly  Foster  Mix.  Co. 

{Cowrt  of  Appeals  of  New  York.    June  9, 1885. ) 

1.  Master  and  Servant  —  Negligence  of  Vice- 

Principal. 
A  master  must  exercise  reasonable  care  to 
provide  for  his  servant  suitable  tools  and  imple- 
ments, a  proper  place  to  work  in,  competent  fel- 
low workmen,  wnen  needed,  etc.,  and  cannot 
delegate  the  performance  of  these  duties  to  a 
superintendent  or  other  employe,  so  as  to  exon- 
erate himself  from  liability  to  a  servant  who  has 
been  injured  bj^  their  non-performance, 

2.  Same — Assumption  of  Risk  of  Service. 

The  rule  that  the  servant  takes  the  risk  of  the 
service  presupposes  that  the  master  has  per- 
formed the  duties  of  care,  caution,  and  vigilance 
which  the  law  casts  upon  him. 

3.  Same. 

Plaintiff,  while  employed  in  defendant's  mine 
in  constructing  a  wall,  was  injured  by  the  fall 
of  a  mass  of  rock  from  an  overhanging  cliff. 
There  was  evidence,  on  the  trial  of  his  action  to 
recover  for  such  injuries,  that  a  seam  had  been 
discovered  in  the  cliff  where  the  rods  broke  off, 
which  defendant's  superintendent  had  knowledge 
was  increasing  in  width,  that  it  would  have  been 
practicable  to  support  such  rock,  that  plaintiff 
had  no  knowledge  of  the  danger,  and  that  the 
superintendent  did  not  take  proper  precautions 
to  protect  the  workmen  from  injury  from  this 
cause.  Held,  that  a  verdict  for  plaintiff  should 
not  be  disturbed. 

Appeal  from  supreme  court,  general 
term,  first  department. 


Action  by  Gustav  Pantzar  against  the 
Tilly  Foster  Iron  Mining  Company  for  in- 
juries alleged  to  have  been  caused  by  negli- 
gence of  defendant.  Verdict  and  judgment 
for  plaintiff.  On  appeal  to  the  general 
term  the  judgment  was  affirmed.  Defend- 
ant again  appealed. 

Luther  R.  Marsh,  for  appellant.  J.  Ed- 
ward Swanstroni,  for  respondent. 

KtGER,  C.  J.  The  general  principles  up- 
on which  this  action  depends  have  been  so 
frequently  discussed  in  recent  cases  that 
anything  more  than  a  brief  summary 
would  be  unprofitable.  Thus  it  has  been 
held  that  a  master  owes  the  duty  to  his 
servant  of  furnishing  adequate  and  suita- 
ble tools  and  implements  for  his  use,  a 
safe  and  proper  place  in  which  to  prose- 
cute his  work,  and,  when  ttiey  are  needed, 
the  employment  of  skillful  and  competent 
workmen  to  direct  his  labor  and  assist  in 
the  performance  of  his  duties.  Coal  Co.  v. 
Reid,  3  Macq.  275;  Laning  v.  Railroad 
Co.,  49  N.  Y.  522;  Brvdon  v.  Stewart,  2 
Macq.  34;  Booth  v.  Railroad  Co.,  73  N.  Y. 
40.  That  "no  duty  belonging  to  the  mas- 
ter to  perform  for  the  safety  and  protec- 
tion of  his  servants  can  be  delegated  to 
any  servant  of  any  grade  so  as  to  exon- 
erate the  master  from  responsibility  to  a 
servant  who  has  been  injured  bj-  its  non- 
performance."   Mann  v.  President,  etc..  91 


NEGLIGENCE. 


243 


N.  Y.  500:  Booth  v.  Railroad  Co.,  supra. 
And  that,  when  the  general  management 
and  control  of  an  industrial  enterprise 
or  establishment  is  delegated  to  a  super- 
intendent, with  power  to  hire  and  dis- 
charge servants,  to  direct  their  labors  and 
obtain  and  employ  suitable  meansandap- 
jjliances  for  the  conduct  of  the  business, 
«uch  superintentlent  stands  in  the  place  of 
the  master,  and  his  neglect  to  adopt  all 
reasonable  means  and  precautions  to  pro- 
vide for  the  safety  of  the  employes  consti- 
tutes an  omission  of  duty  on  the  part  of  the 
master,  rendering  him  liable  for  any  injury 
occurring  to  the  servant  therefrom.  Cor- 
coran V.  Holbrook,  59  N.  Y.  517. 

The  case  shows  that  the  defendant  was 
the  owner  of  a  coal  mine  in  Putnam  coun- 
ty. New  York,  conducted  under  the  man- 
agement of  a  superintendent.  He  was 
Invested  by  them  with  full  power  of  con- 
trol over  the  same,  and  ample  discretion 
-and  authority  in  directing  the  work,  and 
using  all  suitable  measures  and  precau- 
tions for  carrying  on  the  business  of  min- 
ing, and  securing  the  safety  of  the  work- 
men employed  in  the  prosecution  of  the 
enterprise. 

The  action  under  review  was  brought 
by  a  servant  of  the  defendant  to  recover 
damages  for  personal  injuries  received  by 
;iim  through  the  fall  of  a  mass  of  rock, 
while  working  in  a  pit  in  which  the  min- 
ing operations  in  question  were  carried 
on.  Thp  plaintiff,  at  the  time  of  the  acci- 
dent, -was  upon  a  wall  in  the  course  of 
construction  for  the  purpose  of  furnishing 
a  place  behind  which  to  deposit  the  refuse 
material  of  the  mine,  and,  as  claimed  by 
defendant,  also  with  a  view  of  supporting 
the  overhanging  cliff  from  which  the  rock 
injuring  plaintiff  fell.  At  the  time  of  the 
accident  this  wall  had  been  raised  to  the 
height  of  about  GO  feet,  and  was  still  some 
50  feet  below  the  surface  of  the  ground. 
While  thus  engaged  with  a  number  of 
other  workmen  a  large  mass 'was  de- 
tached, and  fell  from  the  brow  of  the 
pr.ojecting  cliff  under  which  the  work  was 
in  i)rogress,  and  caused  the  death  of  some, 
and  tiie  serious  injury  of  others,  among 
whom  was  the  plaintiff. 

Tiie  evidence  as  to  the  condition  of  the 
rock  at  the  time  of  the  accident  was  con- 
flicting, and  raised  questions  of  fact  pecul- 
iarly within  the  province  of  the  jury  to 
determine.  On  the  part  of  the  defendant 
it  tended  to  show  that  the  cliff  was  com- 
posed of  gupiss,  a  mineral  naturally 
marked  by  seams,  joints,  and  foliations, 
and  that  it  was  in  the  frequent  and  con- 
tinued habit  of  causing  it  to  be  examined 
for  the  purpose  of  discovering,  if  possible, 
appearances  indicating  any  immediate 
danger,  and  that  no  such  indications  had 
been  observed  before  the  accident. 

On  the  other  hand,  the  plaintiff's  evi- 
dence showed  that  a  large  crack  parallel 
with,  and  about  10  feet  back  from,  the  up- 
per angle  of  the  face  of  the  cliff  had  long 
existed  and  was  plainly  visible;  that  the 
attention  of  the  superintendent  and  fore- 
man had  been  called  to  it,  and  they  were 
warned  of  its  dangerous  character;  that 
thpy  had  instituted  an  experiment  to  de- 
termine AA'hether  it  was  growing  or  not. 
^nd  that  such  experiment  did  show  that  it 


was  increasing  in  width,  and  still  thej-  took 
no  precautions  to  support  the  rock  while 
the  workmen  were  engaged  under  it,  al- 
though such  precautions  were  practicable, 
and  frequently  adcpted  in  other  mines. 
In  some  cases,  braces  of  timbers,  extend- 
ing across  frcjui  the  side  of  the  pit  to  the 
rock  liable  to  fall,  were  used,  and  in  oth- 
ers the  overhanging  rock  had  been  blast- 
ed off.  It  was  also  shown  that  a  wall 
such  as  that  in  process  of  construction 
would,  when  completed,  have  furnished  a 
support  to  the  projecting  mass.  The 
plaintiff's  evidence  also  tended  to  shoAV 
that  the  rock  broke  off  at  the  place  where 
the  crack  had  been  observed,  and  that 
with  the  fall  the  crack  disappeared.  It 
must  therefore  be  assumed,  from  the  ver- 
dict of  the  jury,  that  it  was  determined 
that  the  rock  fell  from  a  cause  of  which 
the  defendant  had  notice,  and  that  precau- 
tions which  would  have  prevented  the  in- 
jury were  not  adopted,  although  they 
were  practicable,  aud  of  easy  and  safe  ap- 
plication. 

The  evidence  tended  to  show  that  the 
wall  then  in  course  of  construction  was 
not  a  safe  and  suitable  protection  for  the 
laborers  engaged  in  working  upon  it.  It 
obviously  required  a  long  time  to  com- 
plete it,  and  its  main  design  seemed  to  be 
to  furnish  a  place  for  the  deposit  of  refuse 
material.  During  the  course  of  its  erection 
it  certainly  afforded  no  protection  to  those 
working  below  the  cliff,  and  the  jury  was 
authorized  to  infer,  from  the  fact  that  it 
was  not  completed  after  the  lapse  of  sev- 
eral years,  that  it  was  not  originally  de- 
signed as  a  means  of  present  protection 
from  the  dangers  of  falling  rock.  The  de- 
gree of  vigilance  and  care  required  of  a 
master  in  the  adoption  of  means  of  pro 
tection  towards  his  servants  has  been 
much  discussed  by  elementary  writers,  as 
well  as  in  reported  cases,  and  the  conclu- 
sions reached,  applicable  to  such  a  case  as 
the  present,  are  not  disputed.  To  accept 
the  rule  extracted  from  Leonard  v.  Collins, 
70  N.  Y.  90,  and  adopted  in  the  appellant's 
brief,  is  to  inquire  whether  "the  master 
did  everything  which,  in  the  exercise  of 
reasonable  and  ordinary  care  and  pru- 
dence, he  ought  to  have  done."  "  Did  he 
omit  any  precaution  which  a  prudent  and 
careful  man  would  take,  or  ought  to  have 
taken?"  It  is  difficult  to  see  how  the  de- 
fendant can  claim  exemption  from  liabilitj-. 
But  one  exception  was  taken  b^  the  de- 
fendant in  the  case,  and  that  was  to  the 
denial  by  the  court  of  its  motion  to  non- 
suit at  the  close  of  the  plaintiff's  evidence. 
It  might  very  well  be  said  that  the  broad 
question  argued  before  us  by  the  learned 
counsel  for  the  defendant  was  not  proper- 
ly in  the  case,  as  it  was  based,  to  some 
extent,  upon  evidence  given  subsequent 
to  the  taking  of  the  exception.  But  as 
we  think  the  judgment  must,  in  any  event, 
be  affirmed,  no  injustice  is  done  the  plain- 
tiff by  considering  all  of  the  evidence  tak- 
en on  the  trial  in  determining  the  validity 
of  this  exception. 

The  motion  for  a  nonsuit  was  placed  up- 
on  grounds   stated   concisely  as   follows: 
(1)  That   the   accident  causing  plaintiff's 
injury  was  incident  to  the  hazardous  nat- 
I  ure  of  his  eniployment,  and  from  a  risk 


244 


LAW  OF  TOKTS. 


assumed  by  him  on  entering:  upon  it.  (2) 
That  it  did  not  occur  through  an  omission 
on  The  part  of  tlie  defendant  or  its  agents 
to  perform  any  duty  which  it  owed  to 
the  plaintiff.  (3)  That  there  being:  no 
proof  of  the  incompetency  of  the  superin- 
tendent, when  originally  employed,  the 
defendant  was  not  liable  for  an  accident 
caused  through  an  omission  of  duty  on 
his  part  causing  injury  to  a  fellow-servant. 
It  may  be  said,  with  reference  to  the 
ground  last  stated,  tliat  it  is  disposed  of 
bj'  reference  to  the  general  proposition 
laid  down  at  the  outset  «)f  this  opinion, 
and  the  other  grounds  involved  questions 
of  fact  upon  which  the  evidence  was  quite 
sufficient  to  take  the  case  to  the  jury.  The 
motion  assumes  that  the  injury  to  the 
plaintiff  occurred  solely  from  a  hazard  in- 
cident to  tlie  nature  of  the  employment, 
and  not  from  a  cause  which  could  have 
been  foreseen  and  guarded  against  by  the 
exercise  of  proper  care  and  prudence  on 
the  part  of  the  master.  This,  however, 
was  the  very  question  which  was  disput- 
ed before  the  jury  and  decided  by  it  ad- 
versely to  the  appellant. 

The  defendant's  contention  is  based  up- 
on the  evidencesliowing  that  It  is  the  nat- 
ure of  gneiss  rock  to  disintegrate  and  fall 
from  time  to  time  at  unexpected  inter- 
vals, through  the  action  of  the  elements 
ofjerating  upon  it;  but  it  does  not  follow 
from  this  fact  that  the  master  i3  excused 
frcm,  using  proper  precautions  to  protect 
his  workmen  from  danger  known  to  the 
master  arising  from  such  a  cause.  The 
very  fact  that  the  material  was  likeh'  to 
fall  upon  and  Injure  the  defendant's  serv- 
ants at  unexpected  times  imposed  upon 
defendant  the  duty  of  inspection,  and  fre- 
quent and  careful  examinations,  and,  up- 
on  the  discovery   of  any  indications    of 


danger,  to  adopt  all  suitable  precaution* 
to  protect  its  servants  from  injury.  The 
rule  that  the  servant  takes  the  risk  of  the 
service  presupposes  that  the  master  has 
performed  the  duties  of  caution,  care,  and 
vigilance,  which  the  law  casts  upon  him. 
Booth  V.  Railroad  Co.,  supra.  It  is  those 
risks  alone  which  cannot  be  obviated  by 
the  adoption  of  a  reasonable  measure  of 
precaution  by  the  master  that  the  servant 
assumes.  It  was  for  an  omission  to  ob- 
serve the  dangerous  appearances  to  which 
the  evidence  shows  its  attention  had 
been  called,  and  its  neglect  to  adopt  suit- 
able and  proper  means  of  protection,  that 
the  defendant  has  been  hold  liable  bj'  the^ 
jury.  The  evidence  tends  to  show  that 
the  plaintiff  was  ignorant  of  the  danger- 
ous condition  of  the  rock,  and  that  his 
duties  did  not  call  him  to  any  place  from 
which  it  could  be  observed.  He  therefore 
had  a  right  to  rely  upon  the  performance 
of  the  duty  owing  by  the  master,  of  adopt- 
ing proper  and  suitable  measures  of  pre- 
caution to  guard  him  against  the  conse- 
quence of  any  danger  arising  from  the 
obviously  unsafe  condition  of  the  rock, 
and  is  not  justly  censurable  for  an  omis- 
sion to  discover  the  impending  danger 
himself  in  time  to  avoid  it.  The  master, 
however,  had  notice  that  the  rock  was 
in  motion,  and  was  liable  to  fall  at  any 
moment,  and  was  therefore  chargeable 
with  the  duty,  in  the  exercise  of  reason- 
able care  and  prudence,  of  taking  imme- 
diate steps  to  avoid  the  danger,  and  of 
warning  the  men  working  under  it  of  the- 
hazard  to  which  they  were  exposed. 

We  therefore  think  that  there  was  evi- 
dence sustaining  the  verdict  of  the  jury, 
and  that  the  judgment  should  be  affirmed. 

All  concur. 

Judgment  affirmed. 


(See,  also,  Railroad  Co.  v.  Herbert,  116  U.  S.  643.  6  Sup.  Ct.  Rep.  590;  Hough  v.  Railway  Co.,  100 
U.  S.  213;  Benzing  v.  Stein wav,  101  N.  Y.  .547,  o  N.  E.  Rep.  449;  Stringham  v.  Hilton,  111  N.  Y.  ISS,  IS 
N.  E.  Rep.  870;  Tuttle  v.  Railway,  122  U.  S.  1S9,  7  Sup.  Cl.  Rep.  11G6;  Hayden  v.  Manufacturing  Co., 
29  Conn.  54S ;  Yeaton  v.  Railroad  Corp.,  135  Mass.  41S ;  Railroad  Co.  v.  McDade,  185  U.  S.  554, 10  Sup.  Ct. 
Rep.  1044;  Rogers  v.  Manufacturing  Co.,  144  Mass.  198,  11  N.  E.  Rep.  77;  Buzzell  v.  Manufacturing 
Co.,  48  Me.  113.) 


(5  Best  &  S.  570,  L.  R.  1  Q.  B.  149.) 

Morgan  v.  Vale  of  Neath  Ky.  Co. 

{Court  ofQueen''s  Bench.    July  4,  1864.    Ex- 
chequer Chamber.     Nov.  27,  1865.) 

1.  Master  and   Servant  —  Negligence  of  Fel- 

low-Servant—  Who  are  Fellow-Servants. 
The  rule  which  exempts  a  master  from  liability 
to  a  servant  for  injury  caused  by  the  negligence 
of  a  fellow-servant  applies  in  cases  where,  al- 
though the  immediate  object  on  which  the  one 
servant  is  employed  is  very  dissimilar  from  that 
on  which  the  other  is  employed,  yet  the  risk  of 
injury  from  the  negligence  of  the  one  is  so  much 
a  natural  and  necessary  consequence  of  the  em- 
ployment which  the  other  accepts,  that  it  must 
be  included  in  the  risks  which  have  to  be  con- 
sidered in  his  wages. 

2.  Same — Railroad  Companies. 

Wherever  an  employment  in  the  service  of  a 
railway  company  is  such  as  necessarily  to  bring 
the  person  accepting  it  into  contact  with  the  traf- 
fic of  the  line,  risk  of  injury  from  the  careless- 
ness of  those  managing  the  traftic  is  one  of  the 
risks  necessarily  and  naturally  incident  to  such 
employment,  and  within  the  rule. 


3.  Same. 

The  plaintiff  was  in  the  employment  of  a  rail- 
way company  as  a  carpenter,  to  do  any  carpen- 
ter's work  for  the  general  purposes  of  the  com- 
pany. He  was  standing  on  a  scaffolding  at  work 
on  a  shed  close  to  the  line  of  the  railway,  while 
some  porters  in  the  service  of  the  company  care- 
lessly shifted  an  engine  on  a  turn-table  so  that  it 
struck  a  ladder  supporting  the  scaffold,  by  which 
means  the  plaintiff  was  thrown  down  and  injured. 
Held,  on  the  above  principle,  that  the  company 
was  not  liable. 

Rule  nisi  to  enter  verdict  for  plaintiff 
instead  of  a  nonsuit. 

Action  by  Morgan  against  the  Vale  of 
Neath  Kail waj' Comjoaiiy  for  injuries  al- 
leged to  have  been  sustained  by  defend- 
ant's negligence.  Plaintiff,  at  the  time  of 
the  injury,  was  a  carpenter  in  defendant's 
employ  at  weekly  wages.  The  duties  of 
the  carpenters  in  the  employment  of  the 
company  were  to  perform  all  the  carpen- 
ter's work  they  might  be  directed  to  do  by 
the  inspector  of  the  line  for  the  general 
purposes  of  the  company.    The  court  uon- 


NEGLIGENCE. 


24e 


suited  plaintiff,  but  gave  him  lea  veto  mo  vfi 
to  enter  a  verdict  in  his  favor  for  an  agreofl 
sum.  A  rule 7?isi  was  accordingly  ohtainerl 
on  the  jrround  that  tliere  was  no  common 
employment,  such  as  to  exempt  defendants 
from  liaijility. 

Mr.  Giffurd  and  S.  IT'.  Bo  wen,  for  plain- 
tiff.    G.  B.  Hughes,  for  defendants. 

Blackburn.  J.  In  this  case  the  plain- 
tiff was  employed  by  the  defendants  as 
their  servant  to  do  work  as  a  carpenter 
on  their  station  whih'  the  railway  traffic 
was  being  carried  on  in  it  by  tlie  servants 
of  the  defendants.  In  tlie  course  of  this 
employment  he  was  standing  upon  a  scaf- 
fold which  was  erected  near  to  one  of  the 
turn-tables.  Tbe  servants  of  the  defend- 
ants, who  were  engaged  in  shifting  a  loco- 
motive engine,  allowed  it  to  project  so  far 
beyond  the  turn-tablethat,  in  turning,  the 
end  (jf  the  engine  struclv  against  a  ladder 
which  constituted  one  of  the  supports  of 
the  scaffold.  The  scaffold  gave  way  in 
consequence,  and  the  plaintiff  was  thrown 
off  and  injured.  The  plaintiff  was  non- 
suited, with  leave  to  move  to  enter  a  ver- 
dict for  the  plaintiff. 

It  must  be  taken  to  have  been  proved  at 
the  trial  that  there  was  negligence  on  the 
part  of  those  shifting  the  engine,  and  no 
contributing  negligence  on  the  part  of  the 
plaintiff,  so  that  the  plaintiff  might  have 
maintained  an  action  against  those  act- 
ually shifting  the  engine,  and  also  against 
their  masters,  the  defendants,  unless  the 
fact  that  the  plaintiff  was  also  the  servant 
of  the  defendants  forms  a  defense;  and  the 
question  of  law  reserved  must  be  taken  to 
be  whether  the  nature  of  the  plaintiff's 
employment  was  such  as  to  make  him  and 
the  servants,  by  whose  negligence  lie  suf- 
fered, servants  in  a  common  employment, 
or,  as  it  is  sometimes  called,  "collabora- 
tenrs,"  within  the  rule  which  exempts 
the  employer  from  responsibility  to  his 
servant  for  the  consequences  of  the  negli- 
gence of  a  servant  in  a  common  employ- 
ment. 

I  am  of  opinion  that  this  rule  ought  to 
be  discharged,  as  I  think  that  the  facts 
bring  the  case  within  the  principle  of  the 
class  of  cases  of  which  Hutchinson  v.  Rail- 
waj'  Co.,  5  Exch.  '?AZ,  was  the  first  decided 
in  an  English  court,  but  which  had  pre- 
viously l)een  acted  upon  in  America  in  tlie 
case  of  Farwell  v.  Railroad  Corii.,  4  Mete. 
(Mass.)  49,  also  printed  in  3  Macq.  316. 
That  principle  I  take  to  bethat  a  servant, 
who  engages  for  the  performance  of  serv- 
ices for  compensation,  does,  as  an  implied 
part  of  the  contract,  take  upon  liimself,as 
between  himself  and  his  master,  the  nat- 
ural risks  and  perils  incident  to  the  per- 
formance of  such  services;  the  presump- 
tion of  law  being  that  the  compensation 
was  adjusted  accordingly,  or,  in  other 
words,  that  these  risks  are  considered  in 
his  wages;  and  that  where  the  nature  of 
the  service  is  such  that,  as  a  natural  inci- 
dent to  that  service,  the  person  undertak- 
ing it  must  be  exposed  to  risk  of  injury 
from  the  negligence  of  other  servants  of 
"the  same  employer,  this  risk  is  one  of  the 
natural  perils  which  the  servant  by  his 
contract  takes  upon  himself  as  between 
bim    and    his    master;  and   consequently 


that  he  cannot  recover  against  his  ma.ster 
for  an  injury  so  caused.  IJecause,  as  is  said 
liy  Sh.\w,  C.  J.,  in  Farwell  v.  Railroad 
Corp.,  he  "does  not  stand  towards  him  in 
the  relation  of  a  stranger,  but  is  one  whose 
rights  are  regulated  by  contract,  expressed 
or  implied. " 

If  the  master  has,  by  his  own  personal 
negligence  or  malfeasance,  enhanced  the 
risk  to  which  the  servant  is  exposed  be- 
yond those  natural  risks  of  the  employ- 
ment which  must  be  presumed  to  have 
been  in  ccjiitemplation  when  the  emploj-- 
ment  was  accepted,  as,  for  instance,  by 
knowingly  employing  incompetent  serv- 
ants, or  supplying  defective  machinery,  or 
the  like,  no  defense  founded  on  this  princi- 
ple can  apply;  for  the  servant  does  not, 
as  an  implied  part  of  his  contract,  take 
upon  himself  any  other  risks  than  those 
naturally  incident  to  the  employment. 

No  such  point,  however,  arises  in  the 
present  case.  It  was  not  suggested  that 
the  defendants  negligently  emploj'ed  serv- 
ants to  manage  their  traffic  who  were  not 
competent  to  do  so,  nor  that  the  turn- 
tables were  improperly  made.  The  one 
point  made  was  that  the  plaintiff,  who 
was  employed  to  do  carpenter's  Avork  on 
the  station,  was  not  emploj'ed  in  the  same 
work  as  those  who  were  employed  in 
working  the  railway  traffic ;  and  it  was 
contended  that  it  was  essential  that  the 
servants  should  be  in  a  common  employ- 
ment, and  working  for  a  common  object. 
I  quite  agree  that  it  is  necessary  that  their 
employment  must  be  common  in  this 
sense:  that  the  safety  of  one  servantmust, 
in  the  ordinary  and  natural  course  of 
things,  depend  on  the  care  aiid  skill  of  the 
others.  This  includes  almost  if  not  every 
case  in  which  the  servants  are  emploj'ed 
to  do  joint  work,  but  I  do  not  think  it 
is  limited  to  such  cases.  There  are  many 
cases  where  the  immediate  object  on  which 
the  one  servant  is  employed  is  very  dissim- 
ilar from  that  on  which  the  other  is  em- 
ployed, and  yet  the  risk  of  injurj-  from  the 
negligence  of  the  one  is  so  much  a  natural 
and  necessary  consequence  of  the  employ- 
ment which  the  other  accepts  that  it 
must  be  included  in  the  risks  which  are  to 
be  considered  in  his  wages.  I  think  that, 
whenever  theemploj'ment  is  such  as  neces- 
sarily to  bring  the  person  acceptingit  into 
contact  with  the  traffic  of  the  line  of  rail- 
way, risk  of  injury  from  the  carelessness 
of  those  managing  that  traffic  is  one  of 
the  risks  necessarily  and  naturalh'  inci- 
dent to  such  an  employment,  and  within 
the  rule. 

In  Hutchinson  v.  Railway  Co.,  5  Exch. 
343,  the  company's  servant,  who  went  as 
their  servant  in  one  of  their  trains,  was, 
as  one  of  the  necessary  and  ordinary  con- 
sequences of  so  doing,  exposed  to  risk  of 
injury  from  the  negligence  of  those  who 
worked  the  traffic ;  and  the  judgment  of 
the  court  of  exchequer,  that  his  representa- 
tives could  not  recover  against  the  coni- 
pan.v  for  his  death  caused  iiy  the  negligence 
of  their  servants  working  the  traffic,  was 
on  the  principle  I  have  just  stated.  His 
d"ath  was  held  to  be  caused  by  a  want  of 
skill,  the  risk  of  which  the  deceased  had, 
as  between  himself  and  the  defendant, 
agreed    to   run.     1  think  it  would   be  ditfi- 


246 


LAW  OF  TORTS. 


cult  to  show  that  Hutchinson,  and  those 
who  worked  the  train  which  ran  into  him, 
were  engaged  in  any  common  service,  in 
any  sense  of  the  word  which  would  not 
include  the  present  case. 

In  Coal  Co.  v.  McGuire,3  Macq. 300,  Lord 
Chelmsford.  C,   in  commenting  on  the 
cases  on  this  subject,  observes  (pages  301- 
308)  that  in   tliem  "it  did   net  become  nec- 
essary to   define  with  any  great  precision 
what  was  meant  by  the    words  'common 
service'    or   'common  employment,'   and 
perhaps  it   might   be   diflicuit  beforehand 
to  suggest   any  exact   definition   of  tliem. 
It  is  necessary,  however,  in   each  particu- 
lar case,  to   ascertain   whether  the  serv- 
ants   are     fellow-laborers     in     the    same 
work;  because,  although   a  servant  may 
be  taken  to  have  engaged  to  encounter  all 
risks    which    are  incid<'nt  to   the   service 
which  he  undertakes,  yet  lie  cannot  be  ex- 
pected to  anticipate  those  which  may  hap- 
pen to   him   on   occasions  foreign   to   his 
employment.      Where  servants,  therefore, 
are  engaged   in   different   departments   of 
duty,  an  injury"  committed  by  one  servant 
upon  the   other,  by   carelessness   or  negli- 
gence in  the  course  of  his  peculiar  work, 
is    not     within    the    exception,   and    tlie 
master's    liability   attaches   in   that  case 
in    the    same    manner    as    if    the  injured 
servant  stood  in  no  such  relation  to  liim. 
There   may  be  some  nicety  and  diflficnlty 
in  particular  cases  in  deciding  whether  a 
common   employment  exists;  but  in  gen- 
eral, by  keeping  in  view  what  the  servant 
must  have  known  orexpected  to  have  been 
involved   in   the  service   which  he   under- 
takes, a  satisfactory  conclusion   may  be 
arrived    at."     These    observations     were 
made  in  a  case  in  wliich  the  house  of  lords 
reversed  the  decision  of  the  Scotch   court 
of  session,  who  had  held  that  the  owners 
of  the    colliery   were    responsible  to   the 
miners  whom  thej'  employed,  for  the  neg- 
ligence of  their  servant  employed  to  work 
the  engine   which  drew    them    up,  on    the 
ground   that  they  were  not  servants  em- 
ployed   in    common    work.     All   the  law 
lords,  in  delivering  their  opinions  that  the 
court  of  session  were  wrong  in  this  decis- 
ion, concurred   in   saying  that  there  was 
no  inflexible  rule  of  law  releasing  the  mas- 
ter from  responsibility  in  every  case  where 
the  person  injured  by  the  negligence  of  his 
servant  was   at    the   time  of   the  injury  in 
the  same   master's   service;  and  they  cer- 
tainly  use  language   which,   like  part  of 
what  I  have  cited  from  Lord  Chelmsford's 
opinion,  seems  to  point  to  the  common  ob- 
ject of  the  service  as  being  the  limit  of  the 
rule ;  but,  as  was  observed  by  Lord  Chelms- 
ford himself  with   reference  to  the  former 
decision,  there  was   nothing  in  the  nature 
of  the  case  before  them  to  call  for  a  precise 
definition   of   the  limit;  it   was  only  nec- 
essary to  decide  that  the  case  before  them 
fell  within  it.     I  think,  however,  the  prin- 
ciple which  I  consider  the  true  one  is  suffi- 
ciently indicated   by  Lord  Chelmsford  in 
the  passage   I   have  just  quoted,  and  by 
Lord   Cranworth   throughout    his  judg- 
ment in  Coal  Co.  v.  Reid,  3  Macq.  26G.     In 
Waller  v.  Railway  Co.,  32  Law  J.  Exch.  205, 
Pollock,  C.  K.,  in  liis  judgment   refers  ti) 
the   observations    thrown     out   by    Lord 
Chelmsford,  and  the  chief  baron  in  effect 


says  that,  in  order  to  decide  the  case  be- 
fore him,  he  considers  what  are  tne  dan- 
gers which  any  servant  engages  to  en- 
counter, and  looks  at  the  probable  dan- 
gers attendant  upon  entering  the  engage- 
ment in  question.  This  I  think  the  true 
principle,  and  that  the  difficulty  is  to  ap- 
ply it  in  each  case. 

Applying  that  principle  to  the  case  be- 
fore tliem,  the  court  of  exchequer  decided 
that  a  guard  Kf  a  railway  train  had  taken 
upon  himself  the  risk  of  injury  from  the 
negligence  of  the  servants  whose  duty  it 
was  to  see  that  the  rails  were  in  good  or- 
der. And,  applying  the  same  principle  to 
the  present  case,  I  think  that  we  ought  to 
hold  that  the  plaintiff,  in  accepting  an  em- 
ployment to  work  in  the  station  while  the 
traffic  was  being  carried  on,  and  which 
must  have  brought  him  close  to  the  traffic, 
accepted  one  which  necessaril.y  must  have 
exposed  him  to  danger  from  the  careless- 
ness of  those  conducting  the  traffic,  and 
must  be  taken,  as  between  himself  and  his 
employers,  to  have  taken  upon  himself 
that  risk. 

CocKBURN,  C.  J.,  and   Mellor,  J.,  con- 
curred. 
Rule  discharged. 

On  appeal  to  the  exchequer  chamber,  the 
following  opinions  were  rendered: 

Erle,  C.  J.  I  am  of  opinion  that  the 
judgment  should  be  affirmed.  The  plain- 
tiff was  employed  by  the  railway  compa- 
ny' to  do  carpenter's  work,  and  he  wms  so 
employed  on  the  line  of  railway,  and  the 
wrong-doers  were  the  porters,  also  in  the 
employment  of  thecompany,  who,in  shift- 
ing a  steam-engine  on  a  turn-table  close 
to  the  shed  on  which  the  plaintiff  was 
working,  managed  the  business  so  negli- 
gently that  the  engine  struck  against  the 
ladder  which  partly  supported  the  plain- 
tiff's scaffolding,  and  threw  the  plaintiff 
violently  to  the  ground.  The  plaintiff  and 
the  porters  were  engaged  in  one  common 
employment,  and  were  doing  woi*k  for 
the  common  object  of  their  masters,  viz., 
fitting  the  line  for  traffic.  On  a  suggestion 
put  by  my  Brother  Pigott,  Mr.  Macna- 
mara  was  driven  to  an  answer,  which  (if  it 
did  not  admit  that  it  was  the  same  thing) 
showed  that  he  had  difficulty  in  establish- 
ing any  distinction  whether  the  plaintiff 
were  working  close  by,  or  whether  he 
were  employed  on  the  turn-table  itself.  I 
think  it  can  make  no  difference,  and  the 
rule  which  exempts  the  master  from  lia- 
bility to  a  servant  for  injury  caused  bj'the 
negligence  of  a  fellow-servant  apjjlies. 
The  principle  on  which  this  rule  was  es- 
tablished, as  applicable  to  the  present 
case,  is  very  clearly  put  bj'  Blackburn,.!., 
in  the  judgment,  to  which  Mkllor,  J., 
agreed,  in  the  court  below:  "There  are 
many  cases  where  the  immediate  object 
on  which  the  one  servant  is  employed  is 
very  dissimilar  from  that  on  which  the 
other  is  employed,  andyetthei'isk  of  injury 
from  the  negligence  of  the  one  is  so  much 
a  natural  and  necessary  consequence  of 
the  employment  which  the  other  accepts 
that  it  must  be  included  in  the  risks  which 
are  to  be  considered  in  his  wages.    I  think 


INJURY  CAUSING  DEATHc 


247 


that  whenever  the  employment  is  such  as 
necessarily  to  bring  the  person  accepting; 
it  into  contact  with  the  traffic  of  the  line 
of  a  railway,  risk  of  injury  from  the  care- 
lessness of  those  managing  that  traffic  is 
one  of  the  risks  necessarily  and  naturally 
incident  to  such  an  emijloyment,  and  with- 
in the  rule."  The  cases  on  this  subject  are 
extremely  numerous,  and  have  l)een  close- 
ly examined,  both  here  and  in  the  court 
below,  and  I  could  not  make  the  matter 
clearer  by  going  through  them.  It  is 
sufficient  to  say  that  I  entirely  agree  with 
the  judgment  of  the  court  below  that  the 
facts  of  the  case  bring  it  within  the  rule 
exempting  the  master  from  liability. 

Pollock,  C.  B.  I  only  wish  to  add  a 
single  sentence.  It  appears  to  me  that  we 
should   be  letting   in  a  flood  of  litigation 


were  we  to  decide  the  present  case  in  fa- 
vor of  the  plaintiff;  for,  if  a  carpenter's 
emplo3-ment  is  to  be  distinguished  from 
that  of  the  porters  employed  by  the  same 
company,  it  will  be  sought  to  split  up  the 
employees  inevery  large  establishment  into 
different  departments  of  service,  although 
the  common  object  of  their  employment, 
however  different,  is  but  the  furtherance 
of  the  business  of  the  master;  yet  it  might 
be  said,  with  truth,  that  no  two  had  a 
common  immediate  object.  This  shows 
that  we  must  not  refine,  but  look  at  the 
common  object,  and  not  at  the  common 
immediate  object. 

WiLLES,  Byles,  and  Keating,  J.J.,  and 
Rramwell,  Channell,  and  Pigott,  BB., 
concurred. 

Judgment  affirmed. 


(See,  also,  Parwell  v.  Raih-oad  Corp.,  4  Mete,  Mass.,  49;  Holden  v.  Railroad  Co.,  129  Mass.  268; 
Wright  V.  Railroad  Co.,  25  N.  Y.  563;  Brick  v.  Railroad  Co.,  98  N.  Y.  311 ;  McAndrews  v.  Burns,  39  N. 
J.  Law,  117;  Railroad  Co.  v.  Ross,  113  U.  S.  377,  5  Sud.  Ct.  Rep.  184;  Lanning  v.  Railroad  Co.,  49  N.  Y. 
528;  Loughlin  v.  State,  105  N.  Y.  159, 11  N.  E.  Rep.  371;  Wilson  v.  Merry,  L.  R.  1  H.  L.  326.) 


INJURY  CAUSHSTG"  DEATH. 


(95  U.  S.  754.) 
Mobile  Life  Ins.  Co.  v.  Brame. 


(Supreme  Court  of  United  States. 
1878. ) 


Jan.  SI, 


1.  Death — Ground  of  Action  for  Damages. 

At  common  law  an  act  causing  the  death  of  a 
human  being,  though  clearly  involving  pecuniarj^ 
loss,  is  not  the  ground  of  an  action  for  damages. 

2.  Same— Remoteness  of  Damage. 

An  insurance  company  has  no  right  of  action 
against  the  person  who  feloniously  or  negligent- 
ly causes  the  death  of  a  person  insured  by  it,  for 
the  loss  thereby  caused  the  company,  such  loss 
being  too  remote  and  indirect. 

Error  to  the  circuit  court  of  the  United 
States  for  the  district  of  Louisiana. 

Action  by  tiie  Mobile  Life  Insurance 
Company  against  Samuel  D.  Brame  to  re- 
cover the  sum  of  .fl.OOO,  the  alleged  loss 
sustained  by  plciiutiff  in  the  death  of  one 
Craven  McLemore,  willfully  killed  by  de- 
fendant. The  jilaintiff  had  insured  the  life 
of  McLemore,  and  its  payment  of  such  in- 
surance was  the  alleged  loss  to  plaintiff. 
Defendant's  demurrer  to  the  petition  was 
sustained,  and  thereupon  plaintiff  sued 
out  a  writ  of  error. 

Mr.  Cliafi.  E.  Feiiner,  for  plaintiff  in  er- 
ror.    Mr.  John  H.  Kennard,  contra. 

Hunt,  J.  The  argument  of  the  insur- 
ance company  is  that  the  killing  of  the  de- 
ceased was  an  injury  to  or  violation  of  a 
legal  right  or  interest  of  the  company; 
that,  as  a  consequence  thereof,  it  sus- 
tained a  loss,  which  is  the  proximate  ef- 
fect of  the  injury.  The  answer  of  the  de- 
fendant is  founded  upon  the  thecjry  that 
tlie  loss  is  the  remote  and  indirect  result 
merely  of  the  act  ciiarged;  that  at  the 
common  law  no  civil  action  lies  for  an  in- 
jury which  results  in  the  death  of  the  par- 


ty injured;  and  that  the  statutes  of 
Louisiana  upon  that  subject  do  not  include 
the  present  case.  The  authorities  are  so 
numerous  aud  so  uniform  to  the  propo- 
sition that,  by  the  common  law,  no  civil 
action  lies  for  an  injury  which  results  in 
death,  that  it  is  impossible  to  speak  of  it 
as  a  proposition  open  to  question.  It  has 
been  so  decided  in  many  cases  in  the  English 
courts,  and  in  many  of  the  state  courts, 
and  no  deliberate,  well-considered  decis- 
ion to  the  contrary  is  to  be  found.  In 
Hilliard  on  Torts  (page  87,  §  10)  the  rule 
is  thus  laid  down:  "Upon  a  similar 
ground  it  has  been  held  that  at  common 
law  tlie  death  of  a  human  being,  though 
clearly  involving  pecuniary  loss,  is  not 
the  gTound  of  an  action  for  damages." 
The  most  of  the  cases  upon  the  subject 
are  there  referred  to.  Baker  v.  Bolton,  1 
Camp.  493;  Connecticut  Mut.  Life  ins.  Co. 
V.  New  York  &  N.  II.  B.  Co.,  25  Conn.  2(55; 
Kramer  v.  Kailroad  Co.,  25  Cal.  134; 
Eailroad  Co.  v.  Keely,  23  Ind.  133;  Hyatt 
V.  Adams,  IG  Mich.  ISO;  Shields  v.  Yonge, 
15Ga.341);  Insurance  Co.  v.  Frost,  37  111. 
333.  The  only  cases  that  tend  to  the  con- 
trary of  this  rule,  so  far  as  we  know,  are 
Cross  V.  (iutliery,  2  Root,  5)0;  Plummer  v. 
Webb,  1  Ware,  79;  and  Ford  v.  Monroe,  20 
Wend.  210.  Tbej'  areconsidered  hy  the  New 
Yorkcourt  of  appeals  in  Green  v.  Railroad 
Co.,  *41  N.  Y.  294,  2  Abb.  D'^c.  277,  and  com- 
pared with  the  many  cases  to  the  contra- 
ry, and  are  held  not  to  diminish  the  force  of 
the  rule  as  above  stated.  In  that  case  the 
plaintiff  alleged  that  on  the  9th  day  of 
January,  1S5().  his  v\  ife  was  a  pass^^nger 
on  the  defendants'  road,  and  by  the  gross 
carelessness  and  unskilHulness  of  the  de- 
fendants a  collision  occurred,  by  means  of 
which  his  wife  was  kiikHJ,  "  whereby  he 
has  lost  and  been  deprived  of  all  the  com. 


248 


LAW  OF  TORTS, 


fort,  benefit,  and  assistance  of  his  said 
\vife  in  liis  domestic  affairs,  wljicli  lie 
nii^lit  and  otherwise  would  have  iiad,  to 
his  damage,  "  etc.  A  deninrrer  to  tliis  com- 
plaint, upon  the  ground  that  tlie  facts  al- 
leged constituted  no  cause  of  action,  was 
sustained  by  the  New  York  court  of  ap- 
peals. In  Hubgh  V.  Railroad  Co.,  6  La. 
Ann.  495,  the  same  [jrinciple  was  decided, 
and  in  the  same  manner.  In  giving  its 
opinion,  the  court  say:  "The  exception  of 
the  defendants  presents  the  question 
whether  the  death  of  a  human  being  can 
be  the  ground  of  an  action  for  damages." 
Not  being  satisfied  with  this  decision, 
Messrs.  Ogden  &  Duncan  asked  for  a  re- 
hearing, the  argument  for  which  is  re- 
ported in  the  same  volume,  pp.  498-.")0S.  It 
was  denied  in  an  elaborate  opinion  by 
Chief  Justice  Eustis.  In  Hermann  v.  Rail- 
road Co.,  11  La.  Ann.  5,  this  principle  was 
again  affirmed  in  an  opinion  by  Chief  .Jus- 
tice Merrick.  It  is  only  necessary  to  re- 
fer to  one  other  case,  involving  the  same 
principle  as  those  alreadj*  cited,  but  in  its 
facts  more  closely  resembling  the  case  un- 
der consideration.  In  Connecticut  Mut. 
Life  Ins.  Co.  v.  New  York  &  N.  H.  R.  Co., 
supra,  the  declaration  alleged  that  on  the 
20th  day  of  March,  1850,  the  (jlaintiffs  had 
outstanding  and  in  force  a  policy  of  insur- 
ance for  $2,000  upon  the  life  of  Samuel 
Beach;  that  Beach  was  on  that  day  a 
passenger  on  the  defendants' road ;  that 
the  defendants  so  carelessly,  negligently, 
and  nuskillfully  conducted  themselves  that 
the  train  on  which  Beach  was  riding  was 
thrown  down  a  bank  into  the  river;  that 
Beach  was  greatly  wounded  and  bruised, 
by  means  whereof  he  then  and  there  died, 
by  reason  of  which  the  plaintiffs  were 
compelled  to  pay  to  his  administrators 
the  sum  of  $2,000  u|)ou  the  said  policy. 

The  allegation  of  the  present  plaintiffs 
is  that  Brame  tortiously  and  illegally 
took  The  life  of  McLemore  by  shooting 
him.  This  is  open  to  the  inference  that 
the  act  of  Brame  was  felonious.  The  case 
in  Connecticut  is  based  upon  the  allega- 
tion of  negligence  and  carelessness,  and  is 
the  more  favorable  to  a  recovery,  in  that 
it  avoids  the  suggestion  existing  in  the 
present  case,  that  the  civil  injury  is  merged 
in  the  felony.  The  supreme  court  of  Con- 
necticut held  that  the  action  could  not  be 
sustained.  We  have  cited  and  given  refer- 
ences to  the  important  cases  on  this  ques- 
tion; that  they  are  substantially  uniform 
against  the  right  of  recovery.  Upon  prin- 
ciple we  think  uo  other  conclusion  could 
be  reached  than  that  stated.  The  rela- 
tion between  the  insurance  company  and 
McLeuKire,  the  deceased,  was  created  by 
a  contract  between  them,  to  which  Brame 
was  not  a  party.     The  injury  inflicted  by 


him  was  upon  McLemore,  against  his  per- 
sonal rights;  that  it  hapi)ened  to  injure 
the  plaintiff  was  an  incidental  circum- 
stance, a  remote  and  indirect  I'esult,  not 
necessarilj'  or  legitimately  resulting  from 
the  act  of  killing.  As  in  Insurance  Co.  v. 
Bosher,  39  Me.  253,  where  an  insurance 
company  brought  suit  against  one  who 
had  willfully  fired  a  store  ufjon  which  it 
had  a  policy  of  insurance,  which  it  was 
thereby  compelled  to  pay,  it  was  held 
that  the  loss  was  remote  and  indirect, 
and  that  the  action  could  not  be  sus- 
tained. In  Ashley  v.  Dixon,  48  N.  Y.  430,  it 
was  held  that  if  A.  is  under  a  contract  to 
convey  his  land  to  B.,  and  C.  persuades 
him  not  to  do  so,  no  action  lies  by  B. 
against  C.  So  a  witness  is  not  liable  for 
evidence  given  by  him  in  a  suit,  although 
false,  b3'  which  anotlier  is  injured.  Grove 
V.  Brandenburg.  7  Blackf.  234;  Dunlap  v. 
Glidden,  31  Me.  435.  And  in  Anthony  v. 
Slaid,  11  Mete.  (Mass.)  290,  a  contractor 
for  the  support  of  town  paupers  had  been 
sul)jected  to  extra  expense  in  consequence 
of  personal  injury  inflicted  upon  one  of 
them,  and  he  brought  the  action  against 
the  assailant  to  recover  for  such  expendi- 
ture. The  court  held  the  damage  to  be 
remote  and  indirect,  and  not  sustained 
by  means  of  any  natural  or  legal  relation 
between  the  plaintiff  and  the  party  in- 
jured, but  simply  by  means  of  a  special 
contract  between  the  plaintiff  and  the 
town.  Some  text- writers  are  referred  to 
as  holding  a  different  view,  but  we  are  not 
cited  to  any  case  in  this  country  or 
Great  Britain  where  a  different  doctrine 
has  been  held. 

By  the  common  law,  actions  for  injuries 
to  the  person  abate  bj'  death,  and  cannot 
be  revived  or  maintained  by  the  executor 
or  the  heir.  By  the  act  of  parliament  of 
August  26, 1846,  (9  &  10  Vict.,)  an  action 
in  certain  cases  is  given  to  the  representa- 
tives of  the  deceased.  This  principle,  in 
various  forms  and  with  various  limita- 
tions, has  been  incorporated  into  the  stat- 
utes of  many  of  our  states,  and,  among 
others.  Into  that  of  Louisiana.  It  is  there 
given  in  favor  of  the  minor  children  and 
widow  of  the  deceased,  and,  in  default  of 
these  relatives,  in  favor  of  the  surviving 
father  and  mother.  Acts  La.  18-55,  No.  223, 
p.  270.  The  case  of  a  creditor,  much  less  a 
remote  claimant  like  the  plaintiff,  is  not 
within  the  statute. 

In  each  of  the  briefs  it  is  stated  that  the 
defendant  w'as  tried  for  the  homicide,  and 
acquitted.  In  the  view  we  take  of  the 
case,  the  fact  of  a  trial  or  its  result  is  a 
circumstance  quite  immaterial  to  the  pres- 
ent question,  however  important  it  may 
have  been  to  defendant. 

Judgment  affirmed. 


(See,  also,  The  Harrisburg,  119  U.  S.  199,  7  Sup.  Ct.  Rep.  140;  Carey  v.  Railroad  Co.,  1  Cush.  475; 
Leonard  v.  Columbia,  etc.,  Co.,  84  N.  Y.  48.) 


FRAUD  AND  DECEIT. 


249 


FRAUD  AND  DECEIT. 


I.  ELEMENTS  OF  ACTION— FRAUDULENT  INTENT. 


1.  English  rule. 

(L.  R.  14  App.  Cas.  3S7.) 

Dekry  et  ah  v.  Peek. 

{House  of  Lords.    July  1,  1889.) 

1.  Fraud — When  Action'  of  Deceit  Lies. 

To  support  an  action  of  deceit  to  recover  dam- 
ages, plaintiff  must  prove  actual  fraud.  Fraud 
is  proved  wnen  it  is  shown  that  a  false  represen- 
tation has  been  made  knowingly,  or  without  be- 
lief in  its  truth,  or  recklessly,  without  caring 
"Whether  it  be  true  or  false. 

2.  Same. 

A  false  statement,  made  through  carelessness 
and  ■^^-ithout  reasonable  ground  for  believing  it 
to  be  true,  raaj'  be  evidence  of  fraud,  but  does 
not  necessarily  amount  to  fraud.  Such  a  state- 
ment, if  made  in  the  honest  belief  that  it  is  true, 
is  not  fi'audulent,  and  does  not  render  the  person 
making  it  liable  to  an  action  of  deceit. 

3.  Same — Pko.'^pectus  of  Company. 

A  special  act  incorporating  a  tramway  com- 
pany provided  that  the  cai's  might  be  moved  by 
animal  power,  and,  with  the  consent  of  the  board 
of  trade,  by  steam  power.  The  directors  issued 
a  prospectus,  containing  a  statement  that  by  their 
charier  the  company  had  the  ri^ht  to  use  steam 
power  instead  of  horses.  Plaintiff  took  shares  on 
the  faith  of  such  statement.  The  boai'd  of  trade 
afterwards  refused  their  consent  to  the  use  of 
steam,  and  the  company  was  wound  up.  Held, 
in  an  action  of  deceit  against  the  directors  found- 
ed upon  the  false  statement,  that  defendants  were 
not  liable,  the  statement  as  to  steam  power  hav- 
ing been  made  by  them  in  the  honest  belief  that 
it  was  true. 

Appeal  from  court  of  appeal. 

Action  on  the  case  brouj;ht  by  Sir  Hen- 
ry William  Peek  against  William  Derry, 
-chairman,  and  J.  C.  Wakefield.  M.  il. 
Moore.  J.  Pethwick,  and  S.  J.  Wilde,  four 
of  the  directors  of  the  Plymouth,  Devon- 
port  »5c  District  Tramways  Company,  for 
damages  for  allej2:ed  fraudulent  misrepre- 
sentations of  defendants  whereby  plain- 
tiff was  induced  to  take  shares  iu  the  com- 
pany. The  company  was  incorporated  in 
]SS2  by  special  act,  (45  «&  46  Vict.  c.  159,) 
which  i)rovided.  inter  alin,  tliat  the  cars 
used  on  the  tramways  mij>ht  be  moved  by 
animal  power,  and,  with  the  consent  of 
the  board  of  trade,  by  steam  or  any  me- 
chanical power,  for  fixed  jxiiods,  and  sub- 
ject to  the  regulation  of  the  board.  The 
tramways  act  of  ISJO  (33  &  34  Vict.  c.  78) 
provides  that  all  cars  used  on  any  tram- 
way shall  be  moved  by  the  power  pre- 
scribed by  the  special  act,  and,  where  no 
sucli  power  is  prescribed,  by  animal  pow- 
er only.  In  lss3  the  defendants,  as  direct- 
ors of  tile  company,  issued  a  prospectus 
containingthef(jllowing  paragraph  :  "  One 
great  feature  of  tlie  undertaking,  to  which 
consideral)le  importance  should  be  at- 
tached is  that,  by  the  special  act  of  parlia- 
ment obtained,  the  company  lias  therisrht 
to  use  steam  or  meclianical  motive  pow- 
er, instead  of  horses;  'ind  it  is  fully  expect- 
ed that,  by  means   of   this,  a  considerable 


saving  will  result  In  the  working  expenses 
of  the  line,  as  compared  with  other  tram- 
ways worked  by  horses."  Plaintiff,  relying 
upon  the  representation  of  the  right  of 
the  company  to  use  steam  or  mechanical 
power,  took  shares  in  the  company.  Sub- 
sequently the  board  of  trade  refused  to 
consent  to  the  use  of  steam  or  other  me- 
chanical power,  except  on  certain  por- 
tions of  the  tramwaj's.  the  result  of  which 
was  that  the  company  was  wound  up. 
Plaintiff  brought  this  action  of  deceit. 
At  the  trial,  before  Stiki.ing,  J.,  the  ac- 
tion was  dismissed;  but,  on  api)eal  ro  the 
court  of  appeal,  the  decision  below  was 
reversed.  Defendants  appealed  from  the 
judgment  of  the  court  of  appeal. 

Sir  Horace  Davey,  Q.  C,  and  Mr.  Moul- 
ton,  Q.  C,  {M.  Muir  Mackenzie,  with  them, ) 
for  appellants.  Mr.  Bonipas,  Q.  C,  and 
Mr.  Byrne, Q.C.,  [Mr.  Fatullo,  with  them,) 
for  respondent. 

Lord  Hkrschell.  My  lords,  in  the 
statement  of  claim  in  this  action  the  re- 
spondent, who  is  the  plaintiff,  alleges  that 
the  appellants  made,  in  a  prospectus  is- 
sued by  them,  certain  statements  which 
were  untrue;  that  they  well  knew  that 
the  facts  were  not  as  stated  in  the  pro- 
spectus, and  made  the  representations 
fraudulently,  and  with  the  view  to  in- 
duce the  plaintiff  to  take  shares  in  the 
company.  "This  action  is  one  which  is 
commonly  called  an  action  of  'deceit,' a 
mere  common-law  action."  This  is  the 
description  of  it  given  by  Cotton,  L.  J., 
in  delivering  judgment.  1  think  it  impor- 
tant that  it  should  be  borne  in  mind  that 
such  an  action  differs  essentialh'  from 
one  brought  to  obtain  rescission  of  a  con- 
tract on  the  ground  of  misrepi-esentation 
of  a  material  fact.  The  principles  which 
govern  the  two  actions  differ  widelj*. 
Where  rescission  is  claimed  it  is  only  nec- 
essary to  prove  that  there  was  misrepre- 
sentatif)n.  Then,  however  honestly  it 
may  have  been  made,  however  free  from 
blame  the  person  who  made  it.  the  con- 
tract, having  been  obtained  by  misrepre- 
sentation, cannot  stand.  In  an  action  of 
deceit,  on  the  contrary,  it  is  not  enough 
to  establish  misrepresentation  alone.  It 
is  conceded  on  all  hands  that  something 
more  must  be  proved  to  cast  liabilitj-  up- 
on the  defendant,  though  it  has  been  a 
matter  of  controversy  what  additional 
elements  are  requisite.  1  lay  stress  upon 
this,  because  observations  made  by 
learned  judges  in  actions  for  rescission 
Iiave  been  cited,  and  much  relied  upon  at 
I  the  bar  by  counsel  for  the  respondent. 
Care  must  obvi(jusly  he  observed  in  ap- 
j  plying  the  language  used  in  relation  to 
such  actions  to  an  action  of  deceit.     Even 


250 


LAW  OF  TORTS. 


if  the  scope  of  the  language  used  extend 
bej'oud  the  particular  action  which  was 
being  dealt  with,  it  must  be  remembered 
that  the  learned  judges  were  not  engaged 
In  determining  what  is  necessary  to  sup- 
port an  actif)n  of  deceit,  or  in  discriminat- 
ing with  nicety  the  elements  which  enter 
into  it. 

There  is  another  class  of  actions  which 
I  must  refer  to  also  for  the  purpose  of  put- 
ting it  aside.  I  mean  those  cases  where  a 
person  within  whose  special  province  it 
lay  to  know  a  jmrticular  fact  has  given 
an  erroneous  answer  to  an  inquiry  made 
with  regard  to  it  by  a  person  desirous  of 
ascertaining  the  fact  for  the  purpose  of  de- 
termining his  course  accordingly,  and  has 
been  held  bound  to  I'lake  good  the  assur- 
ance he  has  given.  Burrowes  v.  Lock,  10 
Ves.  470,  maj'  be  cited  as  an  example, 
where  a  trustee  had  been  asked  by  an  in- 
tended lender,  upon  the  security  of  a  trust 
fund,  whether  notice  of  any  prior  incum- 
brance upon  the  fund  had  been  given  to 
him.  In  cases  like  this,  it  has  been  said 
that  the  circumstance  that  the  answer 
was  honestly'  made,  in  the  belief  that  it 
was  true,  affords  no  defense  to  the  action. 
Lord  Selborxe  pointed  out  in  Brownlie 
V.  Campbell,  L.  K.  5  App.  Cas.  935,  that 
these  cases  were  in  an  altogether  different 
category  from  actions  to  recover  dam- 
ages for  false  representation,  such  as  we 
are  now  dealing  with. 

One  other  observation  I  have  to  make 
before  proceeding  to  consider  the  law 
which  has  been  laid  down  bj-  the  learned 
judges  in  the  court  of  appeal  in  the  case 
before  your  lordships.  "An  action  of  de- 
ceit is  a  common-law  action,  and  must  be 
decided  on  the  same  principles,  whether  it 
Ue  brought  in  the  chancery  division  or 
any  of  the  common-law  divisions;  there 
being,  in  my  opinion,  no  such  thing  as  an 
equitable  action  for  deceit.  "  This  was  the 
language  of  Cotton,  L.  J.,  in  Arkwright 
V.  Newbold,  17  Ch.  Div.  301.  It  was 
adopted  bv  Lord  Blackburn  in  Smith  v. 
Chadwick,  L.  R.  9  App.  Cas.  193,  and  is 
not,  I  think,  open  to  dispute. 

In  the  court  below.  Cotton,  L.  J.,  said: 
"What,  in  my  opinion,  is  a  correct  state- 
ment of  the  law,  is  this:  that  where  a 
man  makes  a  statement  to  be  acted  upon 
by  others  which  is  false,  and  which  is 
known  by  him  to  be  false,  or  is  made  by 
him  recklessly,  or  without  care  whether  it 
is  true  or  false.— that  is,  without  any  rea- 
sonable ground  for  believing  it  to  be  true, 
—he  is  liable  in  an  action  of  deceit,  at  the 
suit  of  any  one  to  whom  it  was  addressed, 
or  any  one  of  the  class  to  whom  it  was 
addressed,  and  who  was  materially  in- 
duced by  the  misstatement  to  do  an  act  to 
his  prejudice."  About  much  that  is  here 
stated  there  cannot,  I  think,  t)e  two  opin- 
ions. But  when  the  learned  lord  justice 
speaks  of  a  statement  made  recklesslj-.  or 
without  care  whether  it  is  true  or  false, — 
that  is,  without  any  i-easonable  ground 
for  believing  it  to  be  true, — I  find  un'self, 
with  all  respect,  unable  to  agree  that 
these  are  convertible  expressions.  To 
make  a  statement  careless  whether  it  be 
true  or  false,  and  therefore  without  any 
real  belief  in  its  truth,  appears  to  me  to 
be  an  essentially  different  thing  from  mak- 


'  ing,  through  want  of  care,  a  false  state- 
ment, "which  is  nevertheless  honestly  be- 
lieved to  be  true;  and  it  is  surely  conceiv- 
able that  a  man  may  believe  that  what 
he  states  is  the  fact,  though  he  has  been 
so  wanting   in   care   that   the  court   may 

j  think  that  there  were  no  sufficient  grounds 

I  to  warrant  his  belief.    I  shall  have  to  con 
sider   hereafter  whether  the   want  of  rea- 

j  sonable  ground  for  believing  the  state- 
ment made  is  sufficient  to  supp(jrt  an  ac- 
tion of  deceit.  I  am  only  concerned  for 
the  moment  to  point  out  that  it  does  not 
follow  that  it  is  so  because  thei-e  is  au- 
thority for  saying  that  a  statement  made 
recklessly,  without  caring  whether  it  be 
true  or  false,  affords  sufficient  foundation 
for  such  an  action.  That  the  learned 
lord  justice  thought  that,  if  a  false  state- 
ment were  made  without  reasonable 
ground  for  believing  it  to  be  true,  an  ac- 
tion of  deceit  would  lie,  is  clear  from  a 
subsequent  passage  in  his  judgment.  He 
says  that  when  statements  are  made  in 
a  prospectus  like  the  present,  to  be  circu- 
lated among  persons  in  order  to  induce 
them  to  take  shares,  "there  is  a  duty  cast 
upon  the  director  or  other  person  who 
makes  those  statements  to  take  care  that 
there  are  no  expressions  in  them  which  in 
fact  are  false;  to  take  care  that  he  has  rea- 
sonable ground  for  the  material  state- 
ments which  are  contained  in  that  docu- 
ment which  he  prepares  and  circulates  for 
the  very  purpose  of  its  being  acted  upon 
by  others."  The  learned  judge  proceeds 
to  say:  "Although,  in  my  opinion,  it  is 
not  necessary  that  there  should  be  what 
I  should  call  fraud,  yet  in  these  actions, 
according  to  my  view  of  the  law,  there 
must  be  a  departure  from  duty;  that  is  to 
say,  an  untrue  statement  made,  without 
any  reasonable  ground  for  believing  that 
statement  to  be  true;  and,  in  my  opinion, 
when  a  man  makes  an  untrue  statement, 
with  an  intention  that  it  shall  be  acted 
upon,  without  any  reasonable  ground  for 
believing  that  statement  to  be  true,  he 
makes  a  default  in  a  duty  which  was 
thrown  upon  him  from  the  position  he  has 
taken  upon  himself,  and  he  violates  the 
right  which  those  to  whom  he  makes  the 
statement  have  to  have  true  statements 
only  made  to  them." 

Now,  I  have  first  to  remark  on  these  ob- 
servations that  the  alleged  "right"  must 
surely  be  here  stated  too  widely,  if  it  is  in- 
tended to  refer  to  a  legal  right,  the  viola- 
tion of  which  may  give  rise  to  an  action 
for  damages.  For,  if  there  be  a  right  to 
liave  true  statements  only  made,  this  will 
render  liable  to  an  action  those  who  make 
untrue  statements,  however  innocently. 
This  cannot  have  been  meant,  I  think  it 
must  have  been  intended  to  make  the  state- 
ment of  the  right  correspond  with  that  of 
the  alleged  duty,  the  departure  from 
which  is  said  to  be  making  an  untrue 
statement  without  any  reasonable  ground 
for  believing  it  to  be  true.  I  have  further 
to  observe  that  the  lord  justice  distinctly 
says  that,  if  there  be  such  a  departure 
from  duty,  an  action  of  deceit  can  be 
maintaiupd,  though  there  be  not  what  he 
should  call  fraud.  I  shall  have  by  and  by 
to  consider  the  discussions  which  have 
arisen   as   to   the  difference   between    the 


FRAUD  AND  DECEIT. 


251 


popular  understanding  of  the  word 
"fraud"' and  the  interpretation  given  to 
it  by  lawyers,  which  havf>  led  to  the 
use  of  such  expressions  as  "legal  fraud," 
or  "fraud  in  law;"  but  1  may  state  at 
once  that,  in  my  opinion,  without  proof 
of  fraud  no  action  of  deceit  is  maintaina- 
ble. When  I  examine  *he  cases  which 
have  been  decided  upon  this  branch  of  the 
law,  I  shall  endeavor  to  show  that  there 
is  abundant  authority  to  warrant  this 
proposition. 

I  return  now  to  the  judgments  delivered 
in  the  court  of  appeal.  Sir  James  Uan- 
XKN  sa\'s:  "I  take  the  law  to  be  that  if 
a  man  takes  upon  himself  to  assert  a 
thing  to  be  true  wliich  he  does  not  know 
to  be  true,  and  has  no  reasonable  ground 
to  believe  to  be  true,  in  order  to  induce 
another  to  act  upon  the  assertion,  who 
does  so  act,  and  is  therebj'  damnified,  the 
person  so  damnified  is  entitled  to  maintain 
an  action  for  deceit."  .A^gain.  Lopks,  L. 
J.,  states  what,  in  his  opinion,  is  the  re- 
sult of  the  cases.  I  will  not  trouble  your 
lordships  with  quoting  the  first  three 
pr(jpositions  which  he  lays  down,  al- 
thougii  I  do  not  feel  sure  that  the  third  is 
distinct  from,  and  not  rather  an  instance 
of,  the  case  dealt  wuth  by  the  second 
proposition.  But  he  says  that  a  person 
making  a  false  statement.  Intended  to  be 
in  fact  relied  on  by  the  person  to  whom  it 
is  made,  may  be  sued  by  the  person  dam- 
aged thereby,  ''fourthly,  if  it  is  untrue  in 
fact,  but  believed  to  be  true,  but  without 
any  reasonable  ground  for  such  belief." 

It  will  thus  be  seen  that  all  the  learned 
judges  concurred  in  thinking  that  it  was 
sufficient  to  prove  that  the  representations 
made  were  not  in  accordance  with  fact, 
and  that  the  person  making  them  had  no 
reasonable  ground,  for  believing  them. 
They  did  not  treat  the  absence  of  such 
reasonable  ground  as  evidence  merely  that 
the  statements  were  made  recklessly,  care- 
less whether  they  were  true  or  false,  and 
without  belief  that  they  were  true;  but 
they  adopted  as  the  test  of  liability,  not 
the  existence  of  belief  in  the  truth  of  the 
assertions  made,  but  whether  the  belief  in 
them  was  founded  upon  any  reasonable 
grounds.  It  will  be  seen,  further,  that  the 
court  did  not  purport  to  be  establishing 
auy  new  doctrine.  Tiiey  deemed  that  they 
were  only  following  the  cases  already  de- 
cided, and  that  the  [iroposition  which 
they  concurred  in  laying  down  was  estab- 
lished by  prior  authorities.  Indeed,  Lo- 
pes, L.  J.,  ex[)ressl\-  states  the  law  in  this 
respect  to  be  well  settled.  This  renders  a 
close  and  critical  examination  of  the  ear- 
lier authorities  necessary. 

I  need  go  no  further  back  than  the  lead- 
ing case  of  Pasley  v.  Freeman,  2  Smith, 
Lead.  Cas.  94.  If  it  was  not  there  for 
the  first  time  held  that  an  action  of  deceit 
would  lie  in  respect  of  fraudulent  repre- 
sentations against  a  person  not  a  party 
t(j  a  contract  induced  bj-  them,  the  law 
was,  at  all  events,  not  so  well  settled  but 
that  a  aistinguished  judge,  Gkosk,  .1., 
differing  from  his  brethren  on  the  bench, 
held  that  such  an  action  was  not  main- 
tainable. Blllek,  J.,  who  held  that  the 
action  lay,  adopted  in  relation  to  it  the 
language  of  Ckoke,  J.,  in   Baily   v.   ^ler- 


frell,  3  Bnlst.  95,  who  said:  "Fraud  with- 
j  out  damage,  or  damage  without  fraud, 
gives  no  cause  of  action,  but  where 
j  the.se  two  do  concur  *  *  *  an  action 
jlies."  In  reviewing  the  case  of  Crosse  v. 
I  Gardner,  Carth.  90.  he  says:  "Knowledge 
of  the  falsehood  of  the  thing  asserted  is 
fraud  and  deceit;"  and,  further,  after 
I)ointing  out  that  in  Risney  v.  Selby,  1 
Salk.  211,  the  judgment  proceeded  wholly 
on  the  ground  that  the  defendant  knew 
what  he  asserted  to  be  false,  he  adds: 
"The  asserticm  alone  will  not  maintain 
the  action,  but  the  plaintiff  must  go  on  to 
prove  that  it  was  false,  and  that  the  de- 
fendant knew  it  to  be  so;"  the  latter 
words  bring  specially  emphasized,  Ke.v- 
YON,  C.  J., said  :  "The  plaintiffs  applied  to 
the  defendant,  telling  him  that  tliey  were 
going  to  deal  with  Falch,  and  desired  to 
be  informed  of  his  credit,  when  the  defend- 
ant fraudulently,  and  knowing  it  to  be 
otherwise,  and  with  a  design  to  deceive 
the  plaintiffs,  made  the  false  affirmation 
stated  on  the  record,  by  which  they  sus- 
tained damage.  Can  a  doubt  be  enter- 
tained for  a  moment  but  that  is  injurious 
to  the  plaintiffs?"  In  this  case  it  wa.s^ 
evidently  considered  that  fraud  was  the 
basis  of  the  action,  and  that  such  fraud 
might  consist  in  making  a  statement 
known  to  be  false.  Haycraft  v.  Creasy, 
2  East,  92,  was  again  an  action  in  respect 
of  a  false  affirmation  made  by  the  defend- 
ant to  the  plaintiff  about  the  credit  of  a 
third  party  whom  the  plaintiff  was  about 
to  trust.  The  words  complained  of  were: 
"  I  can  assure  you  of  my  own  knowledge 
that  you  may  credit  Miss  R.  to  any 
amount  with  perfect  safety."  All  the 
judges  were  agreed  that  fraud  was  of  the 
essence  of  the  action,  but  they  differed  in 
their  view  of  the  conclusion  to  be  drawn 
from  the  facts.  Lord  Kenyon  thought 
that  fraud  had  been  proved,  becau.se  the 
defendant  stated  that  to  be  true  within 
his  own  knowledge  whicli  he  did  not  know 
to  be  true.  The  other  judges,  thinking 
that  the  defendant's  words  vouching  his 
own  knowledge  were  no  more  than  a 
strong  exjjression  of  opinion,  inasmuch  as 
a  statement  concerning  the  credit  of  an- 
other can  l)e  no  more  than  a  matter  of 
f)pinion,  and  that  he  did  believe  thelady's 
credit  to  be  what  he  represented,  held  that 
the  action  would  not  lie.  It  is  beside  the 
present  purpose  to  inquire  which  view  of 
the  facts  was  the  more  sound.  Upon  the 
law  there  -was  no  difference  of  opinion.  It 
is  a  distinct  decision  that  knowledge  of 
the  falsity  of  the  affirmation  made  is  essen- 
tial to  the  maintenance  of  the  action,  and 
that  belief  in  its  truth  affords  a  defense. 

I  may  pass  now  to  I'oster  v.  Charles,  7 
Bing.  10.5.  It  was  there  <"ontpnded  that 
the  defendant  was  not  liable,  even  though 
the  representation  he  made  was  false  to 
his  knowledge,  because  he  had  no  inten- 
tion of  defrauding orinjuring  the  plaintiff. 
This  contention  was  not  upheld  bj-  the 
court,  TiNDAi.,  C.  J.,  saying:  "It  is  a 
frnnd  in  law  if  a  partj-  makes  representa- 
tions which  he  knows  to  be  false,  and  in- 
jury ensues,  although  the  motives  from 
W'hich  the  representations  proceeded  may 
not  have  been  l)ad."  This  is  the  first  of 
the  cases  in  which  I  have  met  with  the  ex- 


252 


LAW  OF  TORTS. 


pression  "fraud  in  law."  It  was  man- 
ilestly  user!  in  relation  to  the  argument 
that  the  defendant  was  not  actuated  by 
a  desire  to  defraud  or  injure  the  person  to 
whom  the  representation  was  made.  The 
popular  use  of  the  word  "fraud"  perhaps 
involves  sf'ntii'ally  the  conception  of  such 
a  motive  as  one  of  its  elements.  But  1  do 
not  think  the  chief  justice  intended  to  in- 
dicate an3'  doubt  that  the  act  which  he 
cliaracterized  as  a  fraud  in  law  was  in 
truth  fraudulent  as  a  matter  of  fact  also. 
Willfully  to  tell  a  falsehood,  intending 
that  another  shall  be  led  to  act  upon  it  as 
if  it  wei-e  the  truth,  may  well  be  termed 
fraudulent,  whatever  the  motive  which 
induces  it,  though  it  be  neither  gain  to  the 
person  making  the  assertion  nor  injury  to 
the  person  to  whom  it  is  made. 

Foster  v.  Charles,  7  Bing.  105,  was  fol- 
lowed in  Corbett  v.  Brown,  S  Bing.  83,  and 
shortly  afterwards  in   Puihill  v.    Walter, 

3  Barn.  »t  Adol.  114.  The  learned  counsel 
for  the  respondent  placed  great  reliance 
on  this  case,  because,  although  the  jury 
had  negatived  the  existence  of  fraud  in 
fact,  the  defendant  was  nevertheless  held 
liable.  It  is  plain,  however,  that  all  that 
"was  meant  by  this  finding  of  the  jury  was 
tliat  the  defendant  was  not  actuated  by 
any  corrupt  or  improper  motive,  for  Lord 
TENTERDKNsays:  "It  wascontended  that, 
*  *  *  in  order  to  maintain  this  species 
of  action,  it  is  not  necessary  to  prove  that 
tile  false  representation  was  made  from  a 
corrupt  motive  of  gain  to  the  defendant  or 
a  wicked  motive  of  injury  to  the  plaintiff. 
It  was  said  to  be  enougli  if  a  representa- 
tion is  made  which  the  party  making  it 
knowstobe  untrue,  and  which  is  intended 
by  him,  or  which  from  the  mode  in  wiiich 
it  is  made  is  calculated,  to  induce  another 
to  act  on  the  faitli  of  it  in  such  a  way  as 
tliat  he  may  incui*  damage,  and  that 
damage  is  actually  incurred.  A  willful 
falsehood  of  such  a  nature  was  contended 
to  be,  in  the  legal  sense  of  the  word,  a 
fraud,  and  for  this  position  was  cited  Fos- 
ter V.  Charles,  7  Bing.  105,  to  whicli  may 
be  added  the  recent  case  of  Corbett  v. 
Brown,  8  Bing.  33.  The  principle  of  these 
cases  appears  to  be  well  founded,  and  to 
cipply  to  the  present." 

In  a  latercaseof  Crawshay  v.  Thompson, 

4  Man.  &  G.  357,  Maulk,  J.,  explains  Polhill 
V.  Walter,  3  Barn.  &  Adol,  114,  thus:  "If  a 
wrong  be  done  by  a  false  representation  of 
a  party  who  knows  such  representation  to 
be  false,  the  law  will  infer  an  intention  to 
Injure.  That  is  the  effect  of  Polhill  v.  Wal 
ter. "  In  the  same  case,  Cresswei.l,  J., 
defines  "  fraud  in  law  "  in  terms  which  have 
been  often  quoted.  "The  cases,"  he  says, 
"may  be  considered  to  establish  the  prin- 
cij)le  that  fraud  in  law  consists  in  know- 
ingly asserting  that  which  is  false  in  fact 
to  the  injury  of  another.  " 

In  Moens  v.  Heyworth,  10  Mees.  &  W. 
157.  which  was  decided  in  the  same  year 
as  Crawshay  v.  Thompson,  4  Man.  &  (i. 
357,  Lord  Abinger  having  suggested  that 
an  action  of  fraud  might  be  maintained 
where  no  moral  blame  was  to  be  imputed, 
Parke,  B.,  said  :  "To  support  that  count 
[viz.,  a  count  for  fraudulent  representa- 
tion] it  was  essential  to  prove  that  the  de- 
fendants, knowingly,  [and  I  observe  that 


this  word  is  emphasized,]  by  words  or  acts, 
made  such  a  representation  as  is  stated  in 
the  third  count,  relative  t(j  the  invoice  of 
these  goods,  as  they  knew  to  be  untrue." 

The  next  case  in  the  series  (Taylor  v. 
Asliton.  11  Mees.  &  W.  401)  is  one  which 
strikes  me  as  being  of  great  ini))ortance. 
It  was  an  action  broutrht  against  direct- 
ors of  a  bank  for  fraudulent  representa- 
tions as  to  its  affairs,  whereby  the  plain- 
tiff was  induced  to  take  shares.  Tlie  jury 
found  the  defendants  not  guilty  of  fraud, 
but  expressed  the  opinion  that  they  had 
been  Kuilty  of  gross  negligence.  Excep- 
tion was  taken  to  the  mode  in  which  the 
case  was  left  to  the  jury,  and  it  was  con- 
tended that  their  verdict  was  sufficient  to 
render  the  defendants  liable.  Parke,  B., 
however,  in  delivering  the  opinion  of  the 
court,  said:  "It  is  insisted  that  even  that, 
[viz.,  the  gross  negligence  which  the  jury 
had  found,]  accompanied  wath  a  damage 
to  the  plaintiff  in  consequence  of  that 
gross  negligence,  would  be  sufficient  to 
give  him  aright  of  action.  From  this  prop- 
osition we  entirely  dissent,  because  we 
are  of  opinion  that,  independently  of  any 
contract  between  the  parties,  no  one  can 
be  made  responsible  for  a  i-epresentation 
of  thiskind  unless  it  befraudulently  made. 
*  *  *  But  then  it  was  said  that,  in  or- 
der to  constitute  that  fraud,  it  was  not 
necessary  to  show  that  the  defendants 
knew  the  fact  they  stated  to  be  untrue; 
that  it  was  enough  that  the  fact  was  un- 
true, if  they  communicated  that  fact  for  a 
deceitful  purpose;  and  to  that  proposi- 
tion the  court  is  prepared  to  assent.  It 
is  not  necessary  to  show  that  the  defend- 
ants knew  the  facts  to  be  untrue;  if  they 
stated  a  fact  which  was  untrue  for  a 
fraudulent  purpose,  they  at  the  same  time 
not  believing  that  fact  to  be  true,  in  that 
case  it  would  be  both  a  legal  and  moral 
fraud." 

Now, it  is  impossible  to  conceive  a  more 
emphatic  declaration  than  this:  that,  to 
support  an  action  of  deceit,  fraud  must  be 
proved,  and  that  nothing  less  than  fraud 
will  do.  I  can  find  no  trace  of  the  idea 
that  it  would  suffice  if  it  were  shown 
that  the  defendants  had  not  reasonable 
grounds  for  believing  the  statements  they 
made.  It  is  difficult  to  understand  how 
the  defendants  could,  in  the  case  on  whicli 
I  am  commenting,  have  been  guilty  of 
gross  negligence  in  making  the  statements 
they  did,  if  they  had  reasonable  grounds 
for  believing  them  to  be  true,  or  if  they 
had  taken  care  that  they  had  reasonable 
grounds  for  making  them. 

All  the  cases  I  have  hitherto  referred  to 
were  in  courts  of  first  instance.  But  in 
Evans  v.  Collins,  5  Q.  B.  804,  820,  they  were 
reviewed  by  the  exchequer  chamber.  The 
judgment  of  the  court  was  delivered  by 
TiNDAL,  C,  J.  After  stating  the  question 
at  issue  to  be  "whether  a  statement  or 
representation  which  is  false  in  fact,  but 
not  known  to  be  so  by  the  party  making 
it,  but,  on  the  contrary,  made  honestly, 
and  in  the  full  belief  that  it  is  true,  affords 
a  ground  of  action,"  he  proceeds  to  say : 
"The  current  of  the  authorities,  from  Pas- 
ley  V.  Fi-eeman.  2  Smith,  Lead.  Cas.  94, 
downwards,  has  laid  down  the  general 
rule  of  law  to   be  that  fraud  must  con- 


FRAUD  AND  DECEIT. 


253 


cur  with  the  false  statement  in  order 
to  j^ive  a  ^rouud  of  action."  Is  it  not 
dear  tliat  the  court  considered  that  fraud 
was  absent  if  the  statement  was  "made 
honestly,  and  in  the  full  belief  that  it  was 
true?" 

In  Evans  v.  Edmonds,  13  C.  B.  777, 
Maule,  J.,  expressed  an  important  opin- 
ion, often  quoted,  which  has  been  thought 
to  carry  the  law  further  than  the  previous 
authorities,  though  I  do  not  think  it  really 
does  so.  He  said:  "If  a  man  having  no 
knowledge  whatever  on  the  subject  takes 
upon  himself  to  represent  a  certain  state 
of  facts  to  exist,  he  does  so  at  his  peril, 
and  if  it  be  done  either  with  a  view  to  se- 
cure some  benefit  to  himself,  or  to  deceive 
a  third  person,  he  is  in  law  guilty  of  a 
fraud,  for  he  takes  upon  himself  to  war- 
rant his  own  belief  of  the  truth  of  that 
which  he  so  asserts.  Although  the  per- 
son making  the  representation  may  have 
no  knowledge  of  its  falsehood,  the  repre- 
sentation may  still  have  been  fraudulently 
made."  The  foundation  of  this  proposi- 
tion manifestly  is  that  a  person  making 
any  statement  which  he  intends  another 
to  act  upon  must  be  taken  to  warrant 
his  belief  in  its  truth.  Any  person  making 
such  a  statement  must  always  be  aware 
that  the  person  to  whom  it  is  made  will 
understand,  if  not  that  he  who  makes  it 
knows,  yet  at  least  that  he  believes,  it  to 
be  true;  and,  if  he  has  no  such  belief,  he 
is  as  much  guilty  of  fraud  as  if  he  had 
made  any  other  representation  which  he 
knew  to  be  false  or  did  not  believe  to  be 
true. 

I  now  arrive  attheearliest  case  in  which 
I  find  the  suggestion  that  an  untrue  state- 
ment, made  without  reasonable  ground 
for  believing  it,  will  support  an  action  for 
deceit.  In  Bank  v.  Addie,  L.  R.  1  H.  L.  Sc. 
14.5,  162,  the  lord  president  told  the  jury 
"that,  if  a  case  should  occur  of  directors 
taking  upon  themselves  to  put  forth  in 
their  report  statements  of  importance  in 
regai-d  to  the  affairs  of  the  bank,  false  in 
theniselves,  and  which  they  did  not  believe, 
or  had  no  reasonable  ground  to  believe, 
to  be  true,  that  would  be  a  misrejjresenta- 
tion  and  deceit."  Exceptions  having  been 
taken  to  this  direction  without  avail  in 
the  court  of  sessions.  Lord  Ciiklmsford, 
in  this  house,  said  :  "I  agree  in  the  propri- 
ety of  this  interlocutor.  In  the  argument 
upon  this  exception  the  case  was  put  of 
an  honest  belief  being  entertained  by  the 
directors  of  the  reasonableness  of  wiiich  it 
was  said  the  jury,  upon  this  direction, 
would  have  to  judge.  But  supposing  a 
person  makes  an  untrue  statement,  w^hich 
he  asserts  to  be  the  result  of  a  honn  fide 
belief  in  its  truth,  how  can  the  hornt  tidos 
be  tested  except  by  considering  the  grounds 
of  such  belief?  And  if  an  untrue  statement 
is  made  founded  upon  a  belief  which  is 
destitute  of  all  reasonable  grounds,  or 
wliich  the  least  inquiry  would  immediate- 
ly correct,  I  do  not  see  that  it  is  not  fairly 
and  correctly  characterized  as  misrepre- 
sentation and  deceit."  I  think  there  is  here 
some  confusion  between  that  which  is 
evidence  of  fraud  and  that  which  consti- 
tutes it.  A  consideration  of  the  grounds 
of  belief  is  no  doubt  an  important  >!id  in 
ascertaining  whether  the  belief  was  really 


entertained.  A  man's  mere  assertion  mat 
he  believed  the  statement  he  made  to  be 
true  is  not  accepted  as  conclusive  proof 
that  he  did  so.  There  may  be  such  an  ab- 
sence of  reasonable  ground  for  his  belief 
as.  in  spite  of  his  assertion,  to  carry  con- 
viction to  the  mind  that  he  had  not  really 
the  belief  which  he  alleges.  If  the  learned 
lord  intended  to  go  further,  as  apparently 
he  did,  and  to  say  that,  though  the  belief 
was  reall3'  entertained,  yet,  if  there  were 
no  reasonable  grounds  for  it,  the  person 
making  the  statement  was  guilty  of  fraud 
in  the  same  way  as  if  he  had  Known  what 
he  stated  to  be  false,  I  say,  with  all  re- 
spect, that  the  previous  authorities  afford 
no  warrant  for  the  view  that  an  action  of 
deceit  would  lie  under  such  circumstances. 
A  man  who  forms  his  belief  carelessly,  (jr  is 
unreasonably  credulous,  may  be  blame- 
w^orthy  when  he  makes  a  representation 
on  which  another  is  to  act;  but  he  is  not, 
in  ray  opinion,  "fraudulent"  in  the  sense 
in  which  that  word  was  used  in  all  the 
cases  from  Pasley  v.  Freeman.  2  Smith, 
Lead.  Cas.  94,  down  to  that  with  which 
J  an)  now  dealing.  Even  when  the  ex- 
pression "fraud  in  law"  has  been  em- 
ploj'cd,  there  has  always  been  present, 
and  regarded  as  an  essential  element,  that 
the  deception  was  willful,  either  because 
the  untrue  statement  was  known  to  be 
untrue,  or  because  belief  in  it  was  asserted 
without  such  belief  existing.  I  have  made 
these  remarks  with  the  more  confidence 
because  they  appear  to  roe  to  have  the 
high  sanction  of  Lord  Cranworth.  In 
delivering  his  opinion  in  the  same  case  he 
said:  "I  confess  that  my  opinion  was 
that  in  what  his  lordship  [the  lord  presi- 
dent] thus  stated  he  went  beyond  what 
principle  warrants.  If  persons  in  the  situ- 
ation of  directors  of  a  bank  make  state- 
ments as  to  the  condition  of  its  affairs 
which  thej'  bona  fide  believe  to  be  true.  I 
cannot  think  they  can  be  guilty  of  fraud 
because  other  person-^  think,  or  the  court 
thinks,  or  your  lordships  think,  that  there 
was  no  sufficient  ground  to  warrant  the 
opinion  which  they  had  formed.  If  a  little 
more  care  and  caution  must  have  led  the 
directors  to  a  conclusion  different  from 
that  which  they  put  forth,  this  may  afford 
strong  evidence  to  show  that  they  did  not 
reallj'  believe  in  the  truth  of  what  they 
stated,  and  so  that  they  were  guilty  of 
fraud.  But  this  would  bethe  consequence, 
not  of  their  having  stated  as  true  what 
they  had  not  reasonable  ground  to  believe 
to  be  true,  but  of  their  having  stated  a.s 
true  what  they  did  not  believe  to  be  true.  " 
Sir  James  HANXEN,in  his  judgment  below, 
seeks  to  limit  the  application  of  what 
Lord  Ckaxwokth  says  to  cases  where  the 
statement  made  is  a  matter  of  opinion 
only.  With  all  deference,  I  do  not  thiidx  it 
was  intended  to  be  or  can  be  so  limited. 
The  direction  which  he  was  considering, 
and  which  he  thouirht  went  beyond  what 
true  principle  warranted,  had  relation  to 
making  false  statements  of  importance  in 
regard  to  the  affairs  of  the  bank. 

When  this  is  borne  in  mind,  and  the 
words  which  follow  those  quoted  by  Sir 
James  Hannex  are  looked  at.  it  becomes 
to  my  mind  obvious  that  Lord  Cran- 
worth did  not  use   the  woi-ds,  "the  opin- 


•^t>4 


LAW  OF  TORTS. 


ion  which  they  had  formed,"  as  meaning 
anything  dilferent  from  "the  belief  which 
they  entertained.  "  The  opinions  expressed 
by  Lord  Cairns  in  two  well-known  cases 
have  been  cited  as  though  they  supported 
the  view  that  an  action  of  deceit  might  be 
maintained  without  any  fraud  on  the  part 
of  the  person  sued.  I  do  not  think  that 
they  bear  any  such  construction.  In  the 
case  of  Mining  Co.  v.  Smith,  L.  R.  4  H.  L. 
64,  79,  he  said:  "If  persons  take  upon 
themselves  to  make  assei-tionsas  to  w-hich 
they  are  ignorant  whether  they  are  true 
or  untrue,  they  must,  in  a  civil  point  of 
view,  be  held  as  responsible  as  if  they  had 
asserted  that  which  they  knew  to  be  un- 
true. "  This  must  mean  that  the  persons 
referred  to  were  conscious,  when  making 
the  assertion,  that  they  were  ignorant 
whether  it  was  true  or  untrue;  for,  if  not, 
it  might  be  said  of  any  one  wiio  innocently 
makes  a  false  statement.  He  must  be  ig- 
norant that  it  is  untrue,  for  otherwise  he 
"wouhl  not  make  it  innocently.  He  must 
be  ignorant  that  it  is  true,  iov  by  the  hy- 
pothesis it  is  false.  Construing  the  lan- 
guage of  Lord  C^iRXS  in  the  sense  I  have 
indicated,  it  is  no  more  than  an  adoption 
of  the  opinion  expressed  by  Maule,  J.,  in 
Evans  v.  Edmonds,  13  C.  B.  777.  It  is  a 
•case  of  the  representation  of  a  person's 
belief  in  a  fact  when  he  is  conscious  that 
he  knows  not  whether  it  be  true  or  false, 
and  when  he  has  therefore  no  such  belief. 
When  Lord  Cairns  speaks  of  it  as  not  be- 
ing fraud  in  the  more  invidious  sense,  he 
refers,  I  think,  only  to  the  fact  that  there 
was  no  intention  to  cheat  or  injure.  In 
Peek  V.  (Turney,  L.  R.  6  H.  L.  377,  409,  the 
same  learned  lord,  after  alluuing  tothecir- 
cumstance  that  the  defendants  had  been 
acquitted  of  fraud  upon  a  criminal  charge, 
and  that  there  n'as  a  great  deal  to  show 
that  they  were  laboring  under  the  impres- 
sion that  the  concern  had  in  it  the  elements 
of  a  profitable  commercial  undertaking, 
proceeds  to  say  :  "They  may  be  absolved 
trom  any  charge  of  a  willful  design  or  mo 
tive  to  mislead  or  defraud  the  public. 
But,  in  a  civil  proceeding  of  this  kind,  ail 
that  youi'lordships  have  toexamine  is  the 
question,  was  there  or  was  there  nut  mis- 
representation in  point  of  fact?  If  there 
was  however,  however  innocent  the  mo- 
tive may  have  been,  your  lordships  will  be 
obliged  to  arrive  at  the  consequences  which 
properly  would  result  from  what  was 
done.  "  In  the  case  then  under  considera- 
tion it  was  clear  that,  if  there  had  been  a 
false  statement  of  fact,  it  had  (teen  know- 
ingly made.  Lord  Cairns  certainly  could 
not  have  meant  that  in  an  action  of  deceit 
the  onl3'  question  to  be  considered  was 
whether  or  not  there  was  misrepresenta- 
tion in  point  of  fact.  All  that  he  there 
pointed  out  was  tiiat  in  such  a  case  mo- 
tive was  immaterial;  that  it  mattered  not 
that  there  was  no  design  to  mislead  or 
defraud  the  public  if  a  false  representation 
were  knowingly  made.  It  w^as  therefore 
but  an  affirmation  of  the  law  laid  down 
in  Foster  v.  Charles,  7  Bing.  105,  Polhill  v. 
Walter,  3  Barn.  &  Adol.  114,  and  other 
cases  I  have  already  referred  to. 

1  come  now  to  very  recent  cases.  In 
Weir  V.  Bell,  3  Exch.  Div.  238,  Lord  Bram- 
WELL  vigorously  criticised  the  expression 


"legal  fraud,"  and  Indicated  a  very  decid- 
ed opinion  that  an  action  founded  on  fraud 
could  not  be  sustained  except  by  the  proof 
of  fraud  in  fact.  1  have  already  given  my 
reasons  for  thinking  that,  until  recent 
times,  at  all  events,  the  judges  who  spoke 
of  fraud  in  law  did  not  mean  to  exclude 
the  existence  of  fraud  in  fact,  but  only  of 
an  intention  to  defraud  or  injure. 

In  the  same  case  Cotton,  L.  J.,  stated 
the  law  in  much  the  same  way  as  he  did 
in  the  present  case,  treating  "recklessly  " 
as  equivalent  to  "without  any  reasonable 
ground  for  believing"  the  statements 
made.  But  the  same  learned  judge,  in  Ark- 
wright  V.  New  bold,  17  Ch.  Div.  301,  laid 
dow-n  the  law  somewhat  differently,  for  he 
said  :  "  In  an  action  of  deceit  the  represen- 
tation to  found  the  action  must  not  be 
innocent;  that  is  to  say,  it  must  be  made 
either  with  knowledge  of  its  being  false, 
or  with  a  reckless  disregard  as  to  whether 
it  is  or  is  not  true."  And  his  exposition 
of  the  law  was  substantially  the  same 
in  Edgington  v.  Fitzmaurice,  29  Ch.  Div. 
459.  In  this  latter  case  Bowen,  L.  J.,  de- 
fined what  the  plaintiff  must  prove  in 
addition  to  the  falsity  of  the  statement,  as 
"secondly,  that  it  was  false  to  the  knowl- 
edge of  the  defendants,  or  that  they  made 
it  not  caring  whether  it  was  true  orfalse.  " 

It  only  remains  to  notice  the  case  of 
Smith  V.  Chadwick,  20  Ch.  Div.  27,  44,  67. 
The  late  master  of  the  rolls  there  said: 
"A  man  may  issue  a  prospectus  or  make 
any  other  statement  to  induce  another  to 
enter  into  a  contract,  believing  that  his 
statement  is  true,  and  not  intending  to 
deceive;  but  he  may  through  carelessness 
have  made  statements  which  are  not  true, 
and  which  he  ought  to  have  known  were 
not  true,  and  if  he  does  so  he  is  liable  in 
an  actionfordeceit.  Hecannot  beallowed 
to  escape  merely'  because  he  had  good  in- 
tentions, and  did  not  intend  to  defraud." 
This,  like  everything  else  that  fell  from 
that  learned  judge,  is  worthy  of  respectful 
consideration.  With  the  last  sentence  I 
quite  agree,  but  I  cannot  assent  to  the 
doctrine  that  a  false  statement  made 
through  carelessness,  and  which  ought  to 
have  been  known  to  be  untrue,  of  itself 
renders  the  person  whd  makes  it  liable  to 
an  action  for  deceit  This  does  not  seem 
to  me  by  any  means  necessarily  to  amount 
to  fraud,  without  which  the  action  will 
not,  in  my  opinion,  lie. 

It  must  be  remembered  that  it  was  not 
requisite  for  Sir  George  Jessei.  in  Smith 
v.  Chadwick,  20  Ch.  Div.  27,  44,  67,  to  form 
an  opinion  whether  a  statement  carelessly 
made,  but  honestlj'  believed,  could  be  the 
foundation  of  an  action  of  deceit.  The 
decision  did  not  turn  on  any  such  point. 
The  conclusion  at  which  he  arrived  is  ex- 
pres.sed  in  these  terms:  "On  the  whole,  I 
have  come  to  the  conclusion  that  this, 
although  in  some  respects  inaccurate,  and 
in  some  respects  not  altogether  free  from 
imputation  of  carelessness,  vvasa  fair,  hon- 
est, and  bona  fide  statement  on  the  part 
of  the  defendants,  and  by  no  means  exposes 
them  to  an  action  for  deceit."  I  may 
further  note  that  in  the  same  case  Linu- 
i.EY.  L.  J.,  said:  "The  plaintiff  has  to 
prove — First,  that  the  misrepresentation 
was  made  to  him;  secoiitZ/j',  he  must  prove 


FRAUD  AND  DECEIT. 


255 


that  it  was  false;  thirdly,  that  it  was  false 
to  the  knowledge  of  the  defendants,  or, 
^t  all  events,  that  they  did  not  believe  the 
truth  of  it,"  This  appears  to  he  a  differ- 
■ent  statement  of  the  law  from  that  which 
I  have  just  criticised,  and  one  much  more 
in  accord  with  tlie  prior  decisions. 

The  case  of  Smith  v.  Chad  wick  was  car- 
ried to  yourlordsliips'  house.  L.  R.9App. 
Cas.  187,  190.  Lord  Sklbok-nr  thus  laid 
down  the  law  "I  conceive  that,  in  an 
action  of  deceit,  it  is  the  duty  of  the  plain- 
tiff to  estahlisli  two  tiiinji;s:  /'7/-.st,  actual 
fraud,  which  is  to  be  judged  of  hy  the 
nature  and  character  of  the  repre- 
sentations made,  c<jnsidercd  with  refer- 
ence to  the  object  for  which  they  were 
made,  the  knowledge  or  means  of  knowl- 
edge of  the  person  making  them,  and  the 
intention  whicli  the  law  justly  impute-;  to 
every  man  to  produce  those  consequences 
which  are  the  natural  result  of  his  acts; 
and,  secondly,  he  must  establish  tliat  this 
fraud  was  an  inducing  cause  to  tlie  con- 
tract." It  will  be  noticed  that  the  noble 
and  learned  lord  regards  the  proof  of  act- 
ual fraud  as  essential.  All  the  other  mat- 
ters to  which  he  refers  are  elements  to  be 
considered  in  determining  whetiier  such  ' 
fraud  has  been  established.  Lord  Bl.\ck-  j 
BUR.N  indicated  that,  although  he  nearly 
agreed  with  the  master  of  the  rolls, 
the  learned  judge  had  not  quite  stated 
what  he  conceived  to  be  the  law.  He  did 
not  point  out  precisely  how  far  lie  differed, 
but  it  is  impossible  to  read  his  judgment 
in  this  case,  or  in  that  of  Brownlie  v. 
Campbell,  L.  R.  5  App.  Cas.  925,  without 
seeing  that  in  his  opinion  proof  of  actual 
fraud  or  of  a  willful  deception  was  requi- 
site. 

Having  now  drawn  attention,!  believe, 
to  all  the  cases  having  a  material  bearing 
upon  the  question  under  consideration,  I 
proceed  to  state  briefly"  the  conclusions  to 
which  I  have  been  led.  Itliinkthe  author- 
ities establish  the  following  propositions: 
First.  In  order  to  sustain  an  action  of  de- 
ceit, there  must  be  proof  of  fraud,  and 
nothing  short  of  tiiat  will  suffice.  Sec- 
ondly. Fraud  is  proved  when  it  is  shown 
that  a  false  representation  hps  been  made 
(1)  knowingly,  or  (2)  without  belief  in 
its  truth,  or  (3)  recklessly,  careless 
whether  it  be  true  or  false.  Although  I 
have  treated  the  second  and  third  as  dis- 
tinct cases.  I  think  the  thii'd  is  but  an  in- 
stance of  the  second  ;  for  one  who  makes 
a  statement  under  such  circumstances 
can  have  no  real  belief  in  the  truth  of 
what  he  states.  To  prevent  a  false  state- 
ment being  fraudulent,  there  must,  I  think, 
always  be  an  honest  belief  in  its  truth. 
And  this  ijrobably  covers  the  whole 
ground,  fur  one  who  knowingly  alleges 
tiiat  which  is  false  has  obvioush*  no  such 
honest  belief.  Tliirdly.  If  fraud  be  proved, 
the  motive  of  the  person  guilt.v  of  it  is 
immaterial.  It  matters  not  that  there 
was  no  intention  to  cheat  or  injure  the 
person  to  whom  the  statement  was  made. 

I  think  these  propositions  embrace  all 
that  can  be  supported  by  decided  cases  from 
the  time  of  Pasley  v.  Freeman.  L'  Smith, 
Lead.  Cas.  94,  down  to  Bank  v.Addie.L.  R. 
1  H.  L.  Sc.  145,  inlSOr,  when  the  first  sugges- 
tion is  to  befound  that  belief  in  the  truth  of 


what  he  has  stated  will  not  suffice  to  ab- 
solve the  defendant  if  his  belief  be  based  on 
no  reasonable  grounds.  I  haveshown  that 
this  view  was  at  once  dissented  from  by 
Lord  Cranworth,  so  that  there  was  at 
the  outset  as  much  authority  against  it 
as  for  it.  And  I  have  met  with  no  further 
assertion  of  Lord  Chelmsford's  view 
until  the  case  of  Weir  v.  Bell,  3  E.Kch.  Div. 
23S,  where  it  seems  to  be  involved  in  Lord 
Justice  Cotton's  enunciation  of  the  law 
of  deceit.  But  no  reason  is  there  given  in 
support  of  tiie  view  ;  it  i-s  treated  as  es- 
tablished law.  The  dictum  of  the  late 
master  of  the  rolls  that  a  false  statement, 
made  through  carelessness,  which  the  per- 
son making  it  ought  to  have  known  to 
be  untrue,  would  sustain  an  action  of  de- 
ceit, carried  the  matter  still  further.  But 
that  such  an  action  could  be  maintained 
notwithstanding  an  honest  belief  that 
the  statement  n^ade  was  true,if  therewere 
no  reasonable  grounds  for  the  belief,  was, 
I  think,  for  the  first  time  decided  in  the 
case  now  under  appeal. 

Iji  my  opinion,  making  a  false  state- 
ment through  want  of  care  falls  far  short 
of,  and  is  a  very  different  thing  from, 
fraud,  an  1  the  same  may  be  said  of  a  false 
representation  honestly  believed,  though 
on  insufficient  grounds.  Indeed,  Cotton, 
L.  J.,  himself  indicated,  in  the  words  I 
have  already  quoted,  that  he  should  not 
call  it  fraud.  But  the  whole  current  of 
authorities,  with  which  I  have  so  long  de- 
tained your  lordships,  shows  to  my  mind 
conclusively  that  fraud  is  essential  to 
found  an  action  of  deceit,  and  that  it  can- 
not be  maintained  where  the  acts  proved 
cannot  prcjperly  be  so  termed.  And  the 
case  of  Taylor  v.  Asht(jn,  11  Mees.  &  W. 
401,  appears  to  me  to  be  in  direct  conflict 
with  the  dictum  of  Sir  Gkorgg  Jkssel, 
and  inconsistent  with  the  view  taken  by 
the  learned  judges  iu  the  court  below.  I 
observe  that  Sir  Frederick  Pollock,  in  his 
able  w'ork  on  Torts,  (page 243, note.)  refer- 
ring, I  presume,  to  the  dicta,  of  Cotton, 
L.  J.,  and  Sir  Geouge  Jessel,  M.  R.,  says 
that  the  actual  decision  in  Taylor  v.  Ash- 
ton,  11  Mees.  &  W.  401,  is  not  consistent 
with  the  modern  cases,  on  the  duty  of  di- 
rectors of  companies.  I  think  he  is  right. 
But,  for  the  reasons  I  have  given,  I  am 
unable  to  hold  that  anything  less  than 
fraud  w'ill  render  directors  or  any  other 
persons  liable  to  an  action  of  deceit. 

At  the  same  time  I  desire  to  say  distinct- 
ly that,  when  a  false  statement  has  been 
made,  the  questions  whether  there  were 
reasonable  grounds  for  believing  it,  and 
what  were  the  means  of  knowledge  in  the 
possession  of  the  person  making  it,  are 
most  weighty  matters  for  considerati(^n. 
The  ground  upon  which  an  alleged  belief 
was  founded  is  a  most  important  test  of 
its  realitj-.  I  can  conceive  many  cases 
where  the  fact  that  an  alleged  belief  was 
destitute  of  all  reasonable  foundation 
would  suffice  of  itself  to  convince  thecourt 
that  it  was  not  really  entertained,  and 
tiiat  the  rejjresentation  was  a  fraudu- 
lent one.  So,  too,  although  means  of 
knowledge  are,  as  was  pointed  out  by 
Lord  Blackbi'rn  in  Brownlie  v.  Camp- 
bell, L.  R.  5  App.  Cas.  925,  a  very  different 
thing  from  knowledge,  if  I  thought  that 


256 


LAW  OF  TORTS. 


a  person  making  a  false  statement  had 
shut  his  ej-es  to  the  facts,  or  purposely  ab- 
stained from  inquiring  into  them,  I  should 
hold  that  honest  belief  was  absent,  and 
that  he  was  just  asfraudulent  as  if  he  had 
knowingly  stated  that  which  was  false. 

I  have  arrived  with  some  reluctance  at 
the  conclusion  to  which  I  have  felt  my- 
self compelled,  for  I  think  those  who  put 
before  the  public  a  prospectus  to  induce 
them  to  embark  their  money  in  a  commer- 
cial enterprise  ought  to  be  vigilant  to  see 
that  it  contains  such  representations  on- 
ly as  are  in  strict  accordance  with  fact, 
and  I  should  be  very  unwilling  to  give  any 
countenance  to  thecontrary  idea.  I  think 
there  is  much  to  be  said  for  the  view  that 
this  moral  duty  ought  to  some  extent  to 
be  converted  into  a  legal  obligation,  and 
that  the  want  of  reasonable  care  to  see 
that  statements  made  under  such  clrcum- 
ptances  are  true  should  be  made  an  action- 
able wrong.  But  this  isnota  matterfitfor 
discussion  on  the  present  occasion.  If  it  is 
to  be  done,  the  legislature  must  intervene, 
and  expressly  give  a  right  of  action  in  re- 
spect of  such  a  departure  from  duty.  It 
ought  not,  I  think,  to  be  done  by  straining 
the  law,  and  holding  that  to  be  fraudu- 
lent which  the  tribunal  feels  cannot  prop- 
erly be  so  described.  I  think  mischief  is 
likely  to  result  from  blurring  the  distinc- 
tion between  carelessness  and  fraud,  and 
equally  holding  a  man  fraudulent  whether 
his  acts  can  or  cannot  be  justly  so  desig- 
nated. 

It  now  remains  for  me  to  apply  what  I 
believe  to  be  the  law  to  the  facts  of  the 
present  case.  The  charge  against  the  de- 
fendants is  that  they  fraudulently  repre- 
sented that,  by  the  special  act  of  parlia- 
ment which  the  company  had  obtained, 
they  had  a  right  to  use  steam  or  other 
mechanical  power  instead  of  horses.  The 
test  which  I  purpose  employing  is  to  in- 
quire whetlier  the  defendants  knowingly 
made  a  false  statement  in  this  respect,  or 
whether,  on  the  contrary,  they  honestly 
believed  what  they  stated  to  be  a  true 
and  fair  representation  of  the  facts.  Be- 
fore considering  whether  the  charge  of 
fraud  is  proved,  I  maysaj'that  lapproach 
the  case  of  all  the  defendants,  except 
Wilde,  with  the  inclination  to  scrutinize 
their  conduct  with  severity.  They  most 
improperlj'  received  sums  of  money  from 
the  promoters,  and  this  unquestionably 
lays  them  open  to  the  suspicion  of  being 
ready  to  put  before  the  public  whatever 
was  desired  by  those  who  were  promot- 
ing the  undertaking.  But  I  think  tnis 
must  not  be  unduly  pressed,  and  when  I 
find  that  the  statement  impeached  was 
concurred  in  by  one  whose  conduct  in  the 
respect  I  have  mentioned  was  free  from 
blame,  and  who  was  under  no  similar 
pressure,  the  case  assumes,  I  think,  a  dif- 
ferent complexion.  I  must  further  remark 
that  the  learned  judge  who  tried  thecause, 
and  who  tells  us  that  hecai'efully  watched 
the  demeanor  of  the  witnesses  and  scanned 
their  evidence,  came  without  hesitation 
to  the  conclusion  that  they  were  witnesses 
of  truth,  and  that  their  evidence,  what- 
ever ma3'  be  its  effect,  might  safely  be  re- 
lied on.  An  opinion  so  formed  ought  not 
to  be  differed  from  except  on  very  clear 


grounds,  and,  after  carefully  considering- 
the  evidence,  I  see  no  reason  to  dissent 
from  Stirling,  J.'s,  conclusion.  I  shall 
therefore  assume  the  truth  of  their  testi- 
mony. 

I  agree  with  the  court  below  that  the 
statement  madedid  not  accuratelj^convey 
to  tne  mind  of  a  person  reading  it  what 
the  lights  of  the  company  were,  but,  to 
judge  whether  it  may  nevertheless  have 
been  put  forward  without  subjecting  the 
defendants  to  the  imputation  of  fraud, 
your  lordships  must  consider  what  were 
the  circumstances.  By  the  general  tram- 
way's act  of  1870it  is  provided  that  all  car- 
riages used  on  any  tramway  shall  be 
moved  by  the  power  prescribed  by  the 
special  act.  and,  where  no  such  power  is 
prescribed,  by  animal  power  only.  33&34 
Vict.  c.  7S,  §  34.  In  order,  therefore,  to  en- 
able the  company  to  use  steam-power,  an 
act  of  parliament  bad  to  be  obtained  em- 
powering its  use.  T'hishad  been  done,  but 
the  power  was  clogged  with  the  condition 
that  it  was  only  to  be  used  with  the  con- 
sent of  the  board  of  trade.  It  was  there- 
fore incorrect  to  say  that  the  company 
had  the  right  to  use  steam.  They  would 
only  have  that  right  if  they  obtained  the 
consent  of  the  board  of  trade.  But  it  is 
impossible  not  to  see  that  the  fact  which 
would  impress  itself  upon  tlie  minds  of 
those  connected  with  the  company  was 
that  they  had,  after  submitting  the  plans 
to  the  board  of  trade,  obtained  a  special 
act  empowering  the  use  of  steam.  It 
might  well  be  that  the  fact  that  the  con- 
sent of  the  board  of  trade  was  necessary 
would  not  dwell  in  the  same  way  upon 
their  minds,  if  they  thought  that  the  con- 
sent of  the  board  would  be  obtained  as  a 
matter  of  course  if  its  requirements  were 
complied  with,  and  that  it  was  therefore 
a  mere  question  of  expenditure  and  care. 
The  provision  might  seem  to  them  analo- 
gous to  that  contained  in  the  general 
tramways  act,  and  I  believe  in  the  rail- 
ways act  also,  prohibiting  the  line  being 
opened  until  it  had  been  inspected  by  the 
board  of  trade,  and  certified  fit  for  traffic, 
which  no  one  would  regard  as  a  condition 
practically  limiting  the  right  to  use  the 
line  for  the  purpose  of  a  tramvvay  or  rail- 
way. I  do  not  say  that  the  two  cases  are 
strictly  analogous  in  point  of  law,  but 
they  may  well  have  been  thought  so  by 
business  men. 

I  turn,  now,  to  the  evidence  of  the  de- 
fendants. I  will  take  first  that  of  Mr. 
Wilde,  whose  conduct  in  relation  to  the 
promotion  of  the  company  is  free  from 
suspicion.  He  is  a  member  of  the  bar, 
and  a  director  of  one  of  the  London  tram- 
way companies.  He  states  that  he  was 
aware  that  the  consent  of  the  board  of 
trade  was  necessary,  but  that  he  thought 
that  such  consent  had  baen  practically 
given,  inasmuch  as,  pursuant  to  the  stand- 
ing orders,  the  plans  had  been  laid  before 
the  board  of  trade,  with  the  statement 
that  it  was  intended  to  use  mechanical  as 
well  as  horse  power,  and  no  objection 
having  been  raised  by  the  board  of  trade, 
and  the  bill  obtained,  he  took  it  for  grant- 
ed that  no  objection  would  be  raised  aft- 
erwards, ijrovidei  the  works  were  [)rop- 
erly    carried    out.    He  considered,  there- 


FRAUD  AND  DECEIT. 


?57 


fore,  tnat,  practically  anrl  substantially, 
they  had  the  right  ti)  use  stoani,  and  that 
the  statement  was  perfectly  true.  Mr. 
Pethick"s  evidence  is  to  much  the  same  ef- 
fect. He  thought  tln^  board  of  trade  had 
no  more  riglit  to  refuse  their  consent  than 
they  would  in  the  case  of  a  railway-;  that 
they  might  have  required  additions  or  al- 
terations: but  that,  on  any  reasonable  re- 
quirements being  complied  with,  they 
could  not  refuse  their  consent.  It  never 
entered  his  thoughts  that,  after  the  board 
liHfl  passed  their  plans,  with  the  knowl- 
edge that  it  was  proposed  to  use  steam, 
they  would  refuse  their  consent.  Mr. 
Moore  states  that  he  was  under  the  im 
pression  that  tiie  passage  in  the  prospect- 
us reiH-esented  the  effect  of  seciion  35  of  the 
act.  inasmuch  as  he  understood  that  the 
consent  was  obtained.  He  so  understood 
frciui  the  statement  made  at  the  board  by 
the  solicitors  to  the  company,  to  the  gen- 
eral effect  that  everything  was  in  order  for 
the  use  of  steam,  that  the  act  had  been 
obtained  subject  to  tlie  usual  restrictions, 
and  that  they  were  starting  as  a  tram- 
Ava.v  company,  with  full  power  to  use 
steam  as  otiier  companies  were  doing. 
Mr.  Wakefield,  according  to  his  evidence, 
believed  that  the  statement  in  the  pro- 
spectus was  fair;  he  never  had  a  doubt 
about  it.  It  never  occurred  to  him  to  nay 
anything  about  the  consent  of  the  i)oard 
of  trade,  because,  as  they  had  got  the  act 
of  parliament  for  stea>n,  he  presumed  at 
once  that  thej'  would  get  it.  Mr.  Berry's 
evidence  is  somewhat  confused,  but  I 
think  the  fair  effect  of  it  is  that,  though  he 
was  a  ware  that  under  the  act  the  con- 
sent of  the  board  of  trade  was  necessary, 
he  thought  that,  the  company  having  ob- 
tained their  act,  the  board's  consent 
would  follow  as  a  matter  of  course,  and 
that  the  question  of  such  consent  being 
necessary  never  crossed  his  mind  at  the 
time  the  prospectus  was  issued.  He  be- 
lieved at  that  time  that  it  was  correct 
to  say  they  had  the  right  to  use  steam. 

As  I  have  said,  Stirling,  J.,  gave  credit 
to  these  witnesses,  and  I  see  no  reason  to 
differ  from  him.  What  conclusion  ought 
to  be  drawn  from  their  evidence?     I  think 


'"hat  the  consent  of  theboard  of  trade  was 
practically'  concluded  by  the  passing  of 
the  act,  has  the  plaintiff  made  out,  which 
it  was  for  him  to  do.  that  they  have  been 
guilt}' of  a  fraudulent  misrepresentation? 
I  think  not.  I  cannot  hold  it  proved  as 
to  any  one  of  them  that  he  knowingly 
made  a  false  statement,  or  cue  whicii  he 
did  not  believe  to  be  true,  or  was  careles.s 
whether  what  he  stated  was  true  or  fal.se. 
In  short,  I  think  they  honestly  believed 
that  what  they  asserted  was  true,  and  J 
am  of  opinion  that  the  charge  of  fraud 
made  against  tliem  has  not  been  estab- 
lished. It  is  not  unworthy  of  note  that, 
in  his  report  to  the  board  of  trade.  Gen. 
Hutchinson,  who  was  obviouslj"  aware  of 
the  provisions  of  the  special  act,  falls  into 
the  very  same  inaccuracy  of  language  as 
is  complained  of  in  the  defendants,  for  he 
says:  "The  act  of  1882  gives  the  company 
authority  to  use  mechanical  power  over 
all  their  system.  "  I  quite  admit  that  the 
statements  of  witnesses  as  to  their  belief 
are  by  no  means  to  be  accepted  blindfold. 
The  i)robabilities  must  be  considered. 
Whenever  it  is  necessary  to  arrive  at  a 
conclusion  as  to  the  state  of  mind  of  an- 
other person,  and  to  determine  whether 
his  belief  under  given  circumstances  was 
such  as  he  alleges,  we  can  onl}'  do  so  by 
applying  the  standard  of  conduct  which 
our  own  experience  of  the  ways  of  men 
has  enabled  us  to  form, — bj'  asking  our- 
selves whether  a  reasonable  nian  would 
be  likely,  under  the  circumstances,  so  to 
believe.  I  have  applied  this  test.  With 
that  I  have  a  strong  conviction  that  a 
reasonable  man,  situated  as  the  defend- 
ants were,  with  their  knowledge  and 
means  of  knowledge,  might  well  believe 
what  they  state  they  did  believe,  and  con- 
sider that  the  presentation  made  was  sub- 
stantially true.  Adopting  the  language  of 
Jessel,  M.  R.,  in  Smith  v.  Chadwick.  20 
Ch.  Div.  67,  I  conclude  by  saying  that,  on 
the  whole,  I  have  come  to  the  conclusion 
that  the  statement,  "though  in  some  re- 
spects inaccurate  and  not  altogether  free 
from  imputation  of  carelessness,  was  a 
fair,  honest,  and  honn  fide  statement  on 
the  part   of  the  defendants,   and    by   no 


thej- were  mistaken  in  supposing  that  the   means  exposes  them   to   an   action  for  de- 


consent  of  the  board  of  trade  wtjuld  fol 
low  as  a  matter  of  course,  because  the}' 
had  obtained  their  act.  It  was  absolute- 
ly in  the  discretion  of  the  board  whether 
such  consent  should  be  given.  The  pro- 
spectus was  therefore  inaccurate.  But 
that  is  not  the  question.     If  they  believed 


celt."    I  think  the  judgment  of  the  court  of 
appeal  should  be  reversed. 

Order  of  the  court  of  appeal  reversed ; 
order  of  Stirling,  J.,  restored;  the  re- 
spondent to  i)ay  to  the  appellants  their 
costs  below  and  in  this  house;  cause  remit- 
ted to  the  chancer}'  division. 


(See.  also.  Angus  v.  Clifford,  [1891,]  2  Ch.  Div.  449;  Salisbury  v.  Howe,  S7  N.  Y.  128:  Meyer  v. 
Amidon,  45  N.  Y.  169;  Allison  v.  Jack,  76  Iowa,  205,  40  N.  W.  Rep.  SU:  Cowley  v.  Smyth,  46  N.  J. 
Law,  360;  Caldwell  v.  Henry,  76  Mo.  254;  Alexander  v.  Church,  53  Conn.  561,  4  Atl.  Rep.  103.) 


2.  Massachusetts  rule. 


(117  Mass.  195.) 

Litchfield  v.  Hutchinson. 

(Supreme  Judicial  Court  of  Massachusetts. 
Feb.  1,  1S75.) 

Fraud — When  Action  of  Deceit  Lies. 

To  sustain  an  action  of  deceit  to  recover  dam- 
ages, it  is  not  always  necessary  to  prove  that  the 
defendant  knew  that  the  facts  stated  by  him  were 

CHASE — 17 


false.  If  he  states,  as  of  his  own  knowledge, 
material  facts  susceptible  of  knowledge,  which 
are  false,  it  is  a  fraud  which  renders  him  liable 
to  the  party  who  relies  and  acts  upon  the  state- 
ment as  true,  and  it  is  no  defense  that  he  believed 
the  facts  to  be  true. 

Exceptions  from  superior  court,  Middle- 
sex county. 


258 


LAW  OF  TORTS. 


Action  of  tort  brought  by  Paul  F.Litch- 
field against  Nathaniel  Hutchinson  for  de- 
ceit in  the  sale  of  a  horse.  A  verdict  was 
returned  for  defendant.  Plaintiff  alleged 
exceptions. 

D.  S.  Richardson,  [G.  F.  Richardson, 
with  him,)  for  plaintiff.  W.  S.  Gardner, 
[or  defendant. 

Morton,  J.  This  is  an  action  of  tort  in 
T7hich  the  plaintiff  alleges  that  he  was  in- 
duced to  buy  a  horse  of  the  defendant  by 
representations  made  by  hira  that  the 
horse  was  sound,  and  that  the  horse  was, 
in  fact,  unsound  and  lame,  all  of  which 
the  defendant  well  knew.  To  sustain  such 
an  action,  it  is  necessary  for  the  plaintiff 
to  prove  that  the  defendant  made  false 
representations,  which  were  material, 
with  a  view  to  induce  the  plaintiff  to 
purchase,  and  that  the  plaintiff  was  there- 
by induced  to  purchase.  But  it  is  not  al- 
ways necessary  to  prove  that  the  defend- 
ant knew  that  the  facts  stated  by  him 
were  false.  If  he  states,  as  of  his  own 
knowledge,  material  facts  susceptible  of 
knowledge,  wiiich  are  false,  it  is  a  fraud 
which  renders  him  liable  to  the  party  who 
relies  and  acts  upon  the  statement  as  true, 
and  it  is  no  defense  that  he  believed  the 
facts  to  be  true.  The  falsity  and  fraud 
consist  in  representing  that  he  knows  the 
facts  to  be  true,  of  his  own  knowledge, 
when  he  has  no  such  knowledge.  Page  v. 
Bent,  2  Mete.  (Mass.)  371;  Stone  v.  Denny, 
4  Mete.  (Mass.)  1.51;  Milliken  v.Thorndike, 
103  Mass.  382;  Fisher  v.Melleu,  Id.  503. 

In  the  cas3  at  bar  the  plaintiff  asked  the 
court  to  instruct  the  jury  "tbat   if  the  de- 


fendant made  a  representation  of  the 
soundness  of  the  horse,  as  of  his  own 
knowledge,  and  the  jury  are  satisfied  that 
he  might  have  known  by  reasonable  in- 
quiry and  examination  whether  he  was 
sound  or  not,  and  thehorse  wasnot  sound 
as  a  matter  of  fact,  and  if  the  plaintiff  re- 
lied on  such  representations,  and  was  in- 
duced thereby  to  purcliase  the  horse,  and 
thereby  sustained  damage,  then  the  defend- 
ant is  liable. "  We  are  of  opinion  that  this 
instruction  should  have  been  given  in  sub- 
stance. If  the  defect  in  the  horse  was  one 
which  might  have  been  known  by  reason- 
able examination,  it  was  a  matter  suscep- 
tible of  knowledge;  and  a  representation 
by  the  defendant,  made  as  of  his  knowl- 
edge, that  such  defect  did  not  exist,  would, 
if  false,  be  a  fraud  for  which  he  would  be 
liable  to  the  plaintiff,  if  made  with  a  view 
to  induce  him  to  purchase,  and  if  relied  on 
by  him.  A  false  representation  of  this 
character  is  sufficiently  set  forth  in  the 
declaration  to  constitute acause of  action, 
without  the  further  allegation  that  the 
defendant  well  knew  the  representations 
to  be  false.  It  is  not  necessary  that  all 
the  allegations  should  beproved  if  enough 
are  proved  to  make  out  a  cause  of  action. 
The  instructions  given  upon  the  subject 
embraced  in  this  prayer  required  the  plain- 
tiff to  prove,  not  onl^'  that  the  defendant 
made  the  false  representations  alleged,  as 
of  his  own  knowledge,  but  also  that  the 
defendant  knew  that  they  were  false,  or 
that  he  did  not  honestly  believe  them  to 
be  true.  In  this  respect  the  instructions 
were  erroneous. 
Exceptions  sustained. 

(See,  also.  Furnace  Co.  v.  Moffatt,  147  Mass.  403,  18  N.  E.  Rep.  168;  Davis  v.  Nuzum,72  Wis.  439,  40 
N.  W.  Rep.  497;  Iron-Works  v.  Barber,  106  Pa.  St.  125;  Kirkpatrick  v.  Reeves,  121  Ind.  280,  22  N.  E. 
Rep.  139;  Bullitt  v.  Farrar,  43  Minn.  8,  43  N.  W.  Rep.  5.56;  Ramsev  v.  Wallace,  100  N.  C.  75,  6  iS.  E. 
Rep.  638;  Cooper  v.  Sclilesinger,  111  U.  S.  148,  4  Sup.  Ct.  Rep.  360.) 


[I.  FRAUD  BY  SILENCE. 


(94  Mo.  423,  7  S.  W.  Rep.  421  ) 
Gkigsby  v.  Stapleton. 
{Supreme  Court  of  Missouri.    March  5, 1888. ) 
Sale — Fradddlext  Concealment  of  Latent  De- 
fect— Caveat  Emptor. 
Plaintiff  sold  cattle  to  defendant  at  a  sound 
price,  knowing   that  they  had  Texas    fever,  and 
that  some  of  them    had   died    from   the   disease. 
Defendant  did  not  know  that  they  were  diseased, 
nor  that  any  had  died.     Texas  fever  is  a  disease 
not  easily  detected,  except  by  those   acquainted 
with   it.      Held,  a  fraudulent  concealment    by 
plaintiff  of  a  latent  defect,    and  that  the  doc- 
trine of  caveat  emptor  did  not  apply. 

Appeal  from  circuit  court,  Nodaway 
county;  H.  S.  Kelley,  Judge. 

Suit  by  Francis  J .  Grigsbj'  against  J  ames 
Stapleton.  Judgment  for  plaintiff,  and, 
after  motion  for  a  new  trial,  defendant 
appeals. 

Johnston  &  Craig,  for  appellant.  W.  W. 
Ramsey  and  Edwards  &  Ellison,  for  re- 
spondent. 

Black,  J.  This  was  a  suit  in  two 
''ounts.   The  first  declares  for  the  contract 


price  of  100  head  of  cattle  sold  by  the 
plaintiff  tothedefendant ;  thesecond  seeks 
to  reccjver  the  value  of  the  same  cattle. 
Tli^'  contract  price,  as  well  as  the  value,  is 
alleged  to  have  been  $3,431.25.  The  an- 
swer is — First,  a  general  denial;  second, 
fraudulent  representation  as  to  the  health 
and  condition  of  the  cattle;  third,  fraudu- 
lent concealment  of  the  fact  that  thej-  had 
the  Spanish  or  Texas  fever;  fourth,  tender 
of  their  value  in  their  diseased  condition. 
Plaintiff  purchased  105  head  of  cattle  at 
the  stock-yards  in  KansasCity  on  Friday, 
the  25th  July,  1S84,  at  $3.60  per  cwt.  He 
shipped  them  to  Barnard  on  Saturday. 
Mr.  Ray,  plaintiff's  agent,  attended  to  the 
shipment,  and  accompanied  the  cattle. 
Ray  says  it  was  reported  in  the  yards,  be- 
fore he  left  Kansas  City,  that  the  cattle 
were  sick  with  Texas  fever;  some  persons 
said  they  were  sick,  and  some  said  they  were 
not.  When  the  cattle  arrived  at  Barnard, 
Ray  told  tlie  plaintiff  of  the  report,  and 
that  the  cattle  were  in  bad  condition ; 
that  one  died  in  the  yards  at  Kansas  City, 
before  loading,  and   another  died   in   the 


FRAUD  AND  DECEIT. 


259 


cars  on  the  way.  On  Sunday  morning  the 
plaintiff  started  with  them  to  his  home. 
After  driving  them  a  mile  or  so,  he  says  he 
concluded  to  and  did  drive  them  back  to 
the  3'ards,  because  they  were  Avild.  One 
of  them  died  on  this  drive,  and  two  more 
died  in  the  pen  at  Barnard  before  the  sale 
to  defendant.  There  Is  much  evidence 
tending  to  show  that  plaintiff  drove  the 
cattle  back,  because  he  was  afraid  to  take 
them  to  his  neighborhood,  and  that  he 
knew  they  were  diseased,  and  dying  from 
the  fever.  He  made  no  disclosure  of  the 
fact  that  the  cattle  were  sick  to  defend- 
£(nt.  nor  that  they  were  reported  to  have 
the  fever.  Defendant  bargained  for  the 
cattle  on  Sunday  afternoon,  and  on  Mon- 
day morning  completed  the  contract  at 
$3.75  per  cwt.,  and  at  once  shipped  them 
to  Chicago.  Thirty  died  on  the  way ; 
twenty  were  condemned  by  the  health  offi- 
cer. It  is  shown  be3ond  all  question  that 
they  all  had  the  Texas  fever.  The  court, 
by  the  first  instruction  given  at  the  re- 
<iuest  of  the  plaintiff,  told  the  jury  that  if 
"plaintiff  made  no  representations  to  de- 
fendant as  to  the  health  or  condition  of 
said  cattle  to  influence  defendant  to  be- 
lieve said  cattle  were  sound  or  in  healthy 
condition,  but,  on  the  contrary,  defendant 
bought  said  cattle  on  actual  view  of  the 
«ame,  and  relying  on  hi.s  own  judg- 
ment as  to  their  health  and  condi- 
tion, then  the  jury  will  find  for  plaintiff; 
*  *■  *  and,  If  the  cattle  were  bought  by 
the  defendant  in  the  mannerabove  stated, 
it  makes  no  difference  whether  said  cattle, 
or  any  of  tliem,  were,  at  the  time  of  said 
sale,  affected  with  Texas  fever  or  other 
disease,  or  whether  plaintiff  did  or  did 
not  know  of  their  being  so  diseased,  as, 
under  such  circumstances,  he  would  buy 
at  his  own  risk  and   peril." 

Cavecit  emptor  is  the  general  rule  of  thp 
common  law.  If  defects  in  the  property 
sold  are  patent,  and  might  be  discovered 
by  the  exercise  of  ordinary  attention,  and 
the  bu^-er  has  an  opportunity^  to  inspect 
the  property,  the  law  does  not  require  the 
vendor  to  point  out  defects.  But  there 
are  cases  where  it  becomes  the  duty  of  the 
seller  to  point  out  and  disclose  latent  de- 
fects. Parsons  saj's  the  rule  seems  to  De 
that  a  concealment  or  misrepresentation 
as  to  extrinsic  facts  which  affect  the  mar- 
ket value  of  the  things  sold,  is  not  fraud- 
ulent, while  the  same  concealment  of  de- 
fects in  the  articles  themselves  would  be 
fraudulent.  2  Pars.  Cont.  (6th  Ed.)  775. 
When  an  article  is  sold  for  a  particular 
purpose,  the  suppression  of  a  fact  by  the 
vendor,  which  fact  makes  the  article  unfit 
for  the  purpose  for  which  it  was  sold,  is  a 
deceit;  and,  as  a  general  rule,  a  material 
latent  defect  must  be  disclosed  when  the 
article  is  offered  for  sale,  or  the  sale  will 
be  avoided.  1  Whart.  Cont.  §  i'48.  The 
sale  of  animals  which  the  seller  knows,  but 
the  purchaser  does  not,  have  a  contagious 
disease,  should  be  regarded  as  a  fraud, 
when  the  fact  of  the  disease  is  not  dis- 
closed. Cooley,  Torts,  481.  Kerr  says: 
"Defects,  however,  which  are  latent,  or 
circumstances  materially  affecting  thesub- 
ject-matter  of  a  sale,  of  which  the  pui'- 
chaser  has  no  means,  or  at  least  has  no 
equal  means,  of  knowledg*^,  must,  if  known 


to  the  seller,  be  disclosed."  Kerr,  Fraud 
&  M.  (Ed.  by  Bump,)  101.  In  Cardwell  v. 
McClelland,  3  Sneeid,  150,  the  action  was 
for  fraud  in  the  sale  of  an  unsound  horse. 
The  court  had  instructed  that  if  the  buyer 
relies  upon  his  own  judgment  an(i  obser 
vations,  and  the  seller  makes  no  represen- 
tations that  are  untrue,  or  saj's  nothing, 
the  buyer  takes  the  property  at  his  own 
risk.  This  instruction  was  held  to  be  er- 
roneous, the  court  saying,  "If  the  seller 
knows  of  a  latent   defect  in  the  property 

j  that  could  not  be  discovered  by  a  man  of 
ordinary  observation,  he  is  bound  to  dis- 

I  close  it."  In  Jeffrey  v.  Bigelow,  13  Wend. 
51S,  the  defendants,  through  their  agent, 
sold  a  flock  of  sheej)  to  the  plaintiff.  Soon 
after  the  sale  a  disease  known  as  the 
"scab"  made  its  appearance  among  the 
sheep.  It  was  in  substance  said,  had  the 
defendants  made  the  sale  in  person,  and 
known  the  sheep  were  diseased,  it  would 
have  been  their  duty  to  have  informed  the 
purchaser;  and  the  defendants  were  held 
liable  for  the  deceit.  In  the  case  of  Mc- 
Adams  v.  Cates,  24  Mo.  223,  the  plaintiff 
made  an  exchange  or  swap  for  a  filly,  un- 
sound from  loss  of  her  teeth.  The  court, 
after  a  careful  review  of  the  authorities 
as  they  then  stood,  announced  this  conclu- 
sion: "  If  the  defect  complained  of  in  the 
present  case  was  unknown  to  the  plain- 
tiff, and  of  such  a  character  that  he  would 
not  have  made  theexchangehad  heknown 
of  it,  and  was  a  latent  defect  such  as 
would  have  ordinarily  escaped  the  obser- 
vation of  men  engaged  in  buying  horses, 
and  the  defendant,  knowing  this,  allowed 
the  plaintiff  to  exchange  without  com- 
municating the  defect,  he  was  guilty  of  a 
fraudulent  concealment,  and  must  answer 
for  It  accordingly."  This  case  was  fol- 
lowed, and  the  principle  reasserted,  in 
Barron  v.  Alexander,  27  Mo.  530.  Hill  v. 
Balls,  2  Hurl.  &  N.  299,  seems  to  teach  a 
different  doctrine;  but  the  cases  in  this 
court,  supported  as  they  are,  must  be  tak- 
en as  the  established  law  of  this  state. 

There  is  no  claim  in  this  case  that  de- 
fendant knew  these  cattle  were  diseased. 
It  seems  to  be  conceded  on  all  hands  that 
Texas  fever  is  a  disease  not  easily  detect- 
ed, except  by  those  having  had  experience 
with  it.  The  cattle  were  sold  to  the  de- 
fendant at  a  sound  price.  If,  therefore, 
plaintiff  knew  they  had  the  Texas  fever, 
or  any  other  disease  materially  affecting 
their  value  upon  the  market,  and  did  not 
disclose  the  same  to  the  defendant,  he  was 
guilty  of  fraudulent  concealment  of  a  la- 
tent defect.  It  is  not  necessary  to  this  de- 
fense that  there  should  be  any  warranty 
or  representations  as  to  the  health  orcondi- 
tion  of  the  cattle.  Indeed,  so  far  as  this 
Ccise  is  concerned,  if  the  cattle  had  been 
pronounced  by  some  of  the  cattle-men  to 
have  the  Texas  fever,  and,  after  knowledge 
of  that  report  came  to  plaintiff,  some  of 
them  to  his  knowledge  died  from  sickness, 
thenheshould  have  disclosed  these  facts  to 
the  defendant.  They  were  circumstances 
materially  affecting  the  value  of  the  cattle 
for  the  purposes  for  which  they  were 
bought,  or  for  any  other  purpose,  and  of 
which  defendant,  on  all  the  evidence,  had 
no  equal  means  of  knowledge.  To  with- 
hold   these  circumstances  was  a  deceit.  In 


260 


LAW  OF  TORTS, 


the  absence  of  proof  that  defendant  pos- 
sessed such  information.  It  follows  that 
the  first  instruction  js  radically  wron^, 
and  that  the  second,  given  at  the  request 
of    the    plaintiff,  is  equally   vicious.     The 


judgment  is  reversed,   and 
raanded. 


the    cause  re- 


Eay,  J.,  absent, 
cur. 


The  other  judges  cou- 


(The  following  cases  are  to  the  same  effect:  Maynard  v.  Maynard,  49  Vt.  297;  French  v.  Vining, 
102  Mass.  132;  Downing  v.  Dearborn,  77  Me.  457,  1  Atl.  Rep.  407;  bowling  v.  Lawrence,  58  Wis.  252,  1{> 
N.  W.  Rep.  552;  Stewart  v.  Ranche  Co.,  12S  U.  S.  3S3,  9  Sup.  Ct.  Rep.  101.  But  some  cases  are  to  ih© 
contrary:  Paul  v.  Hadlev,  23  Barb.  521;  Beninger  v.  Corwin,  24  N.  J.  Law,  257.  See  Hadley  v.  Clin- 
ton, etc.,  Co.,  13  Ohio  St.  502.) 


III.  FALSE  STATEMENTS  AS  TO  MATTERS  OF  OPINION. 


(102  N.  Y.  454,  7  N.  E.  Rep.  321.) 
HiCKEY    V.  MORRELL. 

{Court  of  Appeals  of  New  York.     June  1, 1S86.) 

Warehouseman-  —  False  Represextatioxs  that 
Warehouse  was  Fire-Proof. 
A  warehouseman,  in  a  circular  soliciting  pa- 
trons, stated  that  in  his  warehouse  no  expense 
had  been  spared  in  supplyine  "protection  against 
the  spread  of  fire,  the  exterior  being  fire-proof,  " 
etc.  Portions  of  the  exterior  of  the  building  were 
in  fact  constructed  of  wood.  Held,  that  such 
statement  was  the  statement  of  a  matter  of  fact, 
not  the  mere  expression  of  an  opinion;  and,  if 
made  by  the  warehouseman  with  knowledge  of 
the  component  parts  of  his  building,  and  with 
intent  to  deceive,  a  person  who  was  induced 
thereby  to  deliver,  for  storage  in  the  warehouse, 
property  which  was  destroyed  by  fire  communi- 
cated to  such  wooden  portions  of  the  structure, 
was  entitled  to  recover  from  the  warehouseman 
for  the  loss  so  incurred.  Earl,  J.,  dissenting. 
12  Daly,  482,  reversed. 

Appeal  from  court  of  common  pleas  of 
the  city  and  county  of  New  York,  general 
term. 

Action  by  Teresa  H.  Hickey  against 
John  H.  Mori  ell  for  alleged  false  represen- 
tations by  defendant.  The  complaint  was 
dismissed  at  the  trial,  and  the  judgment 
Tordefeudant  entered  thereon  was  atfiruied 
by  the  general  term  on  appeal.  12  Daly, 
482.  From  the  judgment  of  the  general 
term  plaintiff  again  appealed. 

Matthew  H Hie,  tor  a lipeWant.  John  M. 
Bowers,  for  respondent. 

"Oaxforth,  J.  As  to  the  character  of 
this  action  the  parties  are  agreed.  It  is 
for  "falsely  and  fraudulently,  "  and"  with 
an  intent tu  deceive  and  defraud  the  plain- 
tiff," representing,  among  other  things, 
that  the  defendant's  warehouse  was  "fire- 
proof on  the  exterior,"  whereby  the  plain- 
tiff was  induced  to  deliver  to  him,  to  be 
stored  therein,  certain  property  of  value, 
which,  while  there,  was  destroyed  by  fire 
communicated  from  the  outside  "to  the 
wooden  cornice  and  wooden  window- 
frames"  of  the  warehouse,  and  thence  to 
the  property  in  question.  The  answer  ad- 
mitted that  defendant  was  proprietor  of 
the  w^arehouse;  that  it  and  the  articles 
described  in  the  complaint  were  destroyed 
by  fire;  but  denied  the  other  matters 
above  referred  to  as  making  out  a  cause 
of  action,  and  set  up  that  "  the  proi)ei-ty 
was  received  and  stored  by  him  as  aware- 
houseman,  and  in  no  other  capacity,  and 
under  the  special  contract  that  the  goods 
were  stored  at  the  owner's  risk  of  fire.  " 

There  was  no  controversy  as  to  the  evi- 
dence. The  question  was  determined  up- 
on that  introduced  by  the  plaintiF,  and  la 


view  of  the  law  as  it  stood  at  the  time  of 
the  bailment.  The  appellnnt  refers  to  the 
statute  (Laws  1S71.  c.  742,  §  8)  "in  relation, 
to  storage,  and  other  purposes,"  impos- 
ing liabilities  upon  persons  for  any  fire  re- 
sulting from  their  willful  and  culpable 
negligence,  and  which,  among  other 
things,  requires  "the  closing  of  iron  shut- 
ters" at  the  completion  of  the  business  of 
each  day,  bj'  the  occupant  of  the  building 
having  use  or  control  of  the  same;  but 
the  complaint  contains  no  allegation  of 
negligence,  and  so  the  action  could  not 
stand  on  that  ground  either  at  common 
law  or  b3"  statute.  Another  statute,  also 
referred  to,  relating  to  buildings  in  the 
city  of  New  York,  (Laws  1874,  c.  547,  §  5,) 
is  of  some  importance  in  its  bearing  upon 
the  point  chiefly  pressed  upon  us,  and  as 
likely  to  have  been  in  contemplation  of 
both  parties.  It  is  there  provided  that 
buildings  of  a  certain  description — within 
which  the  storehouse  in  question  comes — 
shall  have  doors  and  blinds  and  shutters 
made  of  fire-proof  metal  on  every  window 
and  opening  above  the  first  story. 

The  plaintiff's  testimony  went  to  show 
that  she  was  induced  to  store  her  gocjds 
with  the  defendant  by  representations 
contained  in  a  circular  issued  by  him,  the 
object  of  which,  as  therein  stated,  was  to 
call  "the  special  attention  of  persons  hav- 
ing valuable  articles,  merchandise,  or  oth- 
er property  for  storage  to  his  new  first- 
class  storage  warehouse,  in  the  erection 
of  which,"  it  is  said,  am<jng  other  things, 
"bo  expense  has  been  spared  in  supplying 
light,  ventilation,  and  protection  against 
the  spread  of  tire;  the  exterior  being  fire- 
proof, and  the  interior  being  divided  off 
by  heavy  brick  walls, iron  doors,  and  rail- 
ings, appropriate  and  convenient  in  ever3'' 
way  for  the  various  kinds  of  articles  to  be 
.stored. " 

The  learned  counsel  for  the  respondent 
argues  that  the  only  statements  of  fact  in 
the  paragraph  quoted  are  those  which  re- 
late to  the  interior  as  divided  b^'  heavy 
brick  walls, iron  doors,  and  railings;  that 
as  to  those  the  defendant  had  knowledge; 
and  concedes  that  their  non-existence 
would  make  him  guilty  of  a  misrepresen- 
tation. This  is  a  very  narrow  view  of  the 
subject,  and  could  prevail,  if  at  all,  only 
by  conceding  that  the  defendant  purpose- 
ly avoided  mention  of  those  things  which, 
if  stated,  would  make  his  solicitations  less 
attractive,  and  display  him  as  the  owner 
of  a  building  combustible  on  the  outside, 
and  so  of  little  security  to  its  contents  it 
they  happened  to  be  of  the  same  character. 

We  think  the  appellant's  ground  of  com- 


FKAUD  AND  DECEIT. 


261 


IJlaint  a  just  one.  It  was  provpn  tlirit  in 
fact  the  windo v\- -frames  in  the  wareliouse 
were  of  wood;  that  at  tiie  outside  of  the 
windows  there  were  no  shutters;  that 
the  cornices  were  of  wood,  covered  with 
tin.  The  fire  occurred  in  the  evening:.  It 
originated  in  other  buildings  across  the 
street,  and  from  them  communicated  to 
the  wooden  window-frames  on  the  defend- 
ant's building.  An  architect  and  a  build- 
er, examined  as  experts,  testified  that  a 
building  consti-ucted,  as  was  the  one  in 
question,  "  witli  wooden  window-fiames 
and  sashes,  and  no  outside  shutters." 
could  not  be  deemed  fire-proof,  and  that  in 
October,  18.Sl,it  was  practicable  to  erect  a 
storage  warehouse  which  would  be  fire- 
proof on  the  exterior.  At  the  close  of  the 
plaintiff's  evidence  slie  was  nonsuited,  up- 
on the  ground  that  the  statement  in  the 
circular,  as  to  the  character  of  the  exterior 
of  the  building,  was  a  mere  expression  of 
an  opinion,  and  not  the  statement  of  a 
fa(!t.  Upon  the  same  ground  the  judg- 
ment was  affirmed  at  the  general  term. 
In  such  a  circular,  obviously  intended  as 
an  ad  vertisement,  high  coloring  and  exag- 
geration as  to  the  advantages  offered 
must  be  expected  and  allowed  for;  but, 
when  the  author  descends  to  matters  of 
desei-iption  and  affirmation,  no  misstate- 
ment of  any  material  fact  can  be  permit- 
ted, except  at  the  risk  of  making  comren- 
sation  to  whomsoever,  in  reliance  njjon  it, 
suffers  injury.  Here  the  allegation  is  that 
the  exterior  of  tlie  buildina  is  fire-proof. 
It  necessarily  refers  to  the  quality  of  the 
material  out  of  which  it  is  constructed,  or 
which  forms  its  exposed  sui-face.  To  say 
of  any  article  it  is  fire-proof  conveys  no 
other  idea  than  that  the  material  out  of 
which  it  is  formed  is  incombustible.  That 
statement,  as  regards  certain  well-known 
substances  usually  employed  in  the  con- 
struction of  buildings,  while  it  might  in 
some  final  sense  be  deemed  the  expression 
of  an  opinion,  could  in  practical  affairs  be 
properly  regarded  only  as  a  representa- 
tion of  a  fact.  To  say  of  a  building  that 
it  is  fire-proof  excludes  the  idea  that  it  is 
of  wood,  and  n(  cessaril3'  implies  that  it  is 
of  some  substance  fitted  for  the  erection 
of  fire-proof  buildings.  To  say  of  a  cer- 
tain portion  of  a  building  it  is  fire-proof 
suggests  a  comparison  between  that  por- 
tion and  other  parts  of  the  building  not  so 
characterized,  and  warrants  the  conclu- 
sion that  it  is  of  a  different  material.  In 
regard  to  such  a  matter  of  common 
knowledge,  the  statement  is  more  than 
the  expression  of  opinion.  No  one  would 
have  any  reason  to  suspect  that  any  two 
persons  could  differ  in  regard  to  it.  But 
when  we  look  at  the  words  accompany- 
ing this  statement,  viz.,  "No  expense  has 
been  spared  in  supplying  protection 
against  the  spread  of  fire, "  all  possibility 
of  doubt  seems  removed.  Tliis  danger  is 
pointed  out  as  the  one  thing  which,  more 
than  another,  the  owner  had  in  view  and 
guarded  against;  and  the  rest  of  the  sen- 
tence shows  with  what  result,  viz.,  "the 
exterior  being  fire-proof,"  and  the  interior 
divided  off  by  heavy  brick  walls,  iron 
doors,  and  railings.  Thus  the  expenditure 
of  monej'  is  said  to  have  been  limited  only 
by  the  accomplishment   of  the   desired  ob- j 


ject,  and  the  statement  of  the  material 
used  is  in  connection  with  the  representa- 
tion as  to  the  quality  of  the  exterior.  No 
one  reading  of  inside  walls  and  railings  of 
incombustible  material,  and  of  an  ext^^rior 
fire-proof,  could  suppose  that  a  precaution 
against  fire  made  necessary  bv  statute 
had  been  omitted,  or  that  a  builder  who 
called  attention"  to  such  matters  as  an 
inducement  to  patronage  could  have  re- 
garded wooden  window-frames  as  in  any 
sense  fire-proof.  The  language  of  the  cir- 
cular is  very  emphatic.  In  effect,  it  says 
the  buildings,  as  a  whole,  have  been  erect- 
ed at  an  immense  cost;  from  which  asser- 
tion alone,  in  view  of  the  business  to 
which  th^y  were  devoted,  one  would  ex- 
pect strength  and  adai)tation  of  materi- 
als, and  skill  in  construction,  affording  se- 
curity, at  least,  against  all  the  ordinary 
dangers  to  which  property  might  be  ex- 
posed when  put  in  store.  But  this  gener- 
al statement  is  followed  by  the  declara- 
tion that  no  expense  has  been  spared  in 
supplying  "protection  against  the  spread 
of  fire  ; "  and  this  assurance  is  made  promi- 
nent by  the  display  of  capital  letters,  and 
justified  by  the  explanation  which  relates 
to  an  existing  state  of  things,  viz.,  "the 
exterior  being  fire-proof,"  and  still  further 
emphasized  by  the  more  moderate  and 
qualified  statement  as  to  the  interior. 
That  is  not  said  to  be  fire-proof,  but  only 
"divided  off  by  heavy  brick  walls  and  iron 
doors  and  railings;"  describing,  at  the 
same  time,  its  arrangement,  and  the  sub- 
stance of  its  walls  and  partitions. 

As  to  this,  therefore,  the  statement 
would  be  true,  although  the  floors,  lintels, 
stairs,  landings,  ties,  joists,  ceilings,  and 
other  parts  were  of  wootl,  but  no  such 
discrimination  is  suggested  as  to  the  ex- 
terior. The  strength  of  the  walls  might, 
indeed,  be  impaired  by  the  necessary  open- 
ings for  doors  and  windows,  but  for  the 
purpose  of  preventing  mischief  by  fire,  or, 
as  the  defendant  put  it,  "the  spread  of  the 
fire,"  the  exterioris  pronounced  fire-proof. 
Had  he  only  said  of  the  exterior,  as  he 
did  of  the  interior,  "the  wall  is  of  brick," 
the  intending  customer  would  have  been 
put  to  an  inquiry  as  to  the  window-frames 
and  doors.  He  said  much  more.  We 
think,  therefore,  that  the  defendant  must 
be  regarded  as  stating  a  fact,  and  not  as 
expressing  a  mere  opinion,  when  he  de- 
scribed the  exteri(jr,  that  is,  the  whole  ex- 
terior, of  his  buildings  as  fire-proof.  Such 
statement  is  not  to  be  classed  with  those 
relating  to  value,  or  prospective  profits, 
or  prcjspects  of  business,  or  assertions  in 
regard  to  a  speculative  matter,  concern- 
ing anj'  of  which  men  may  differ.  It  re- 
lates to  something  accomplished ;  to  an 
existing  fact,  as  distinguished  from  one 
yet  to  come  into  existence.  It  was  made 
after  calling  to  mind  the  use  to  which  the 
buildings  were  to  be  put,  the  fact  that  the 
attention  of  the  builder  had  been  especial- 
ly directed  to  "protection  against  the 
spread  of  fire,"  which  could  be  effected 
only  by  the  use  of  proper  materials;  and 
the  statement  was  made  with  knowledge 
that  such  materials  had  not  been  used. 

Nor  is  it  like  the  safe  case  cited  by  the 
respondent, — Walker  v.  Milner,  4  Fost.  & 
F.  745.    There  the  action  was  upon  a  war- 


262 


LAW  OF  TORTS. 


ranty  thaf'tlie  safe  in  question  was  thief- 1 
proof;"  "that  nothing  can  break  into  it." 
It  was  broken  into.  There  was  no  sug- 
gestion of  fraud  or  deceit,  and  the  jury 
were  required  to  discriminate  between 
what  was  represented  and  what  was  war- 
ranted, and,  unless  satisfied  there  was  a 
\varranty,  to  find  for  the  defendant.  Tlie 
safe-maker's  prospectus  was  put  in  evi- 
dence. It  stated  that  the  safes  would  in- 
feure  the  safety  of  valuable  propertj'  con- 
tained in  them.  The  court  said:  "The 
words  cited  from  thecircular  could  hardly 
be  understood  in  the  sense  of  a  warranty 
or  assurance  of  perfect  safety,  but  only  as 
importing  a  representation  of  a  high  de- 
gree of  strength."  They  were  promissory 
merely*.  Then  plaintiff's  counsel  referred 
to  a  later  prospectus,  in  which  the  safes  in 
question  were  only  spoken  of  "as  of  the 
strongest  security,"  and  relied  on  this  as 
implying  a  withdrawal  of  the  previous 
warranty.  But  Cockburx,  J.,  observed 
that,  "assuming  later  prospectuses  to 
have  been  issued  after  the  burglary,  it  was 
only  dictated  by  common  honesty;  for, 
after  it  had  been  found  by  actual  experi- 
ence that  the  safe  was  not  absolutely  se- 
cure against  all  possible  attempts,  it  would 
have  been  fraudulent  to  continue  previous 
description."  In  the  case  at  bar  the  plain- 
tiff alleges  fraud.  A  jury  might  find  that 
an  exterior  of  a  city  building  partly  of 
wood,  although  to  no  greater  extent  than 
the  one  in  question,  was  not  fire-proof, 
within  the  meaning  and  intent  of  the  cir- 
cular. Thev  might  also  find  that  when 
the  circular  was  issued  this  fact  was 
known  to  the  defendant;  and  then  the 
d(jctrine  suggested  by  Cockburx,  J., in  the 
case  cited,  would  have  some  application. 

Nor  do  the  other  cases  referred  to  seem 
to  support  respondent's  contention.  They 
exclude  the  idea  of  fraud,  and  relate  to 
matters  of  mere  opinion;  as  whether  a 
certain  valve  will  consume  smokeand  save 
fuel,  (Prideaux  v.  Bunnett,  1  C.  B.,  N.  S., 
613;)  whether  certain  pictures  were  the 
^vork  of  the  old  masters,  or  copies,  (Jend- 
wine  v.Slade,2Esp.572;)  whetherland  was 
of  the  value  certified  to,  (Gordon  v  But- 
ler, 105  U.  S.  553.)  But  in  none  of  them  is 
it  denied  that,  if  the  person  making  the 
statement  or  expressing  the  opinion  had 
at  the  time  knowledge  of  its  falsity,  the 
action  would  lie.  It  is  certainly  well  set- 
tled upon  principles  of  natural  justice 
that  for  every  fraud  or  deceit  which  re- 
sults in  consequential  damage  to  a  party 
he  may  have  an  action. 

Here  the  complaint  states,  not  only  a 
false  repr'^sentation,  with  a  fraudulent  in- 
tent, but  that  the  falsehood  was  conscious 
and  willful;  that  bj' it  the  plaintiff  was 
induced  to  deliver  her  property  to  be 
stored  in  the  building,  and  thereby  incurred 
loss.  The  evidence  may  be  so  viewed  as 
to  sustain  these  allegations.  The  learned 
counsel  for  the  respondent  has  stated,  in 
the  broadest  and  most  unqualified  terms, 


as  a  proposition  not  to  bo  disputed,  "that 
no  man  is  liable  for  the  expression  of  his 
opinion  or  judgment."  But  this  is  true 
only  when  the  opinion  stands  by  itself 
and  is  in  tended  to  betaken  as  distinct  from 
anything  else;  and,  where  the  proposition 
is  found  in  the  books,  it  is  so  restricted. 
Thus  it  is  said :  "  Matters  of  opinion,  stat- 
ed merely  as  such,  will  not,  in  general,  form 
the  ground  to  a  legal  charge  of  fraud." 
Leake,  Cont.  355,  giving  many  instances 
and  also  exceptions  to  the  rule.  State- 
ments of  value  have  been  held  insufficient 
to  sustain  an  action  where,  as  is  said, 
they  were  "mere  matters  of  opinion," 
(Simar  V  Canaday,  53  N.  Y.  306;)  but  at 
the  same  time  it  is  shown  that  under  cer- 
tain circumstances  they  are  to  be  regard- 
ed as  affirmations  of  fact,  and  then,  if  false, 
an  action  can  be  maintained  upon  them. 
The  same  rule  applies  where,  A.  desiring 
credit  of  B.  for  a  certain  amount,  the  lat- 
ter asks  C.  as  to  the  solvency  of  A.,  and 
he  I'eplies,  " He  is  good;  as  good  as  any 
man  in  the  country  for  that  sum."  No 
doubt  this  involves  opinion ;  but  it  is  held 
that  if  the  recommendation  was  made  in 
bad  faith,  and  with  knowledge  that  A. 
was  insolvent,  C.  would  be  liable.  Upton 
V.  Vail ,  6  Johns.  181.  And  so  as  to  every  rep- 
resentation  concerning  a  matter  of  fact, 
by  which  one  man  is  induced  to  change  his 
position,  to  his  injury,  or  the  benefit  of 
another,  it  maybe  so  expressed  as  to  bind 
the  person  makinglt  to  its  truth,  whether 
it  take  the  form  of  an  opinion  or  not,  or  it 
may  appear  that  it  was  not  intended  to 
be  acted  upon.  In  the  latter  case  no  obli- 
gation is  Incurred. 

In  the  circular  issued  by  the  defendant 
there  are  many  words  of  commendation, 
which,  howeverstrong, could  not  be  relied 
upon  as  the  basis  of  contract.  The  ones 
at  first  referred  to  are  not  of  that  char- 
acter. They  relate  to  the  present,  and  de- 
scribe a  portion  of  the  building  in  its  exist- 
ing state  as  "being  fire-proof."  This  is 
not  a  matter  of  opinion,  for  it  defines  a 
state  or  condition,  and,  if  part  of  that 
portion  was  of  wood,  may  properly  be 
regarded  as  "a  false  statement  of  a  fact." 
Whether  the  defendant  knew  the  compo- 
nent parts  of  his  own  buildings,  and,  if  so, 
whether  the  statement  was  made  with 
intent  to  deceive,  and  whether  it  was  an 
inducement  to  the  contract,  the  learned 
counsel  for  the  respondent  has  fully  argued. 
At  present  it  is  unnecessary  to  discuss 
those  questions,  for  it  seems  to  us  they  are, 
as  the  case  stands,  properly  for  the  jury; 
and  upon  the  only  point  which  appears 
to  have  been  considered  by  the  court  be- 
low we  are  obliged  to  differ  from  them. 

That  the  issues  may  be  more  fully  tried, 
the  judgment  should  be  reversed,  and  a 
new  trial  granted,  with  costs  to  abide  the 
event. 

All  concur,  except  Andrews  and  MilTvEr, 
J.I.,  not  voting,  and   Earl,  J.,  dissenting. 

Judgment  reversed. 


(See,  also,  Chrvsler  v.  Canadav,  90  N.  Y.  272;  Marsh  v.  Falker,  40  N.  Y.  562;  Development  Co.  v. 
Silva,  12.5  U.  S.  247,  8  Sup.  Ct.  Rep.  881;  Gordon  v.  Butler,  105  U.  S.  553;  Holbrook  v.  Connor,  60  Me. 
578;  Cowley  v.  Smyth,  46  N.  J.  Law,  380;  Cooper  v.  Levering,  106  Mass.  77.) 


FRAUD  AND  DECEIT. 


263 


IV.  FALSE  STATEMENTS  AS  TO  PATENT  OR  OBVIOUS  DEFECTS. 


(6S  N.  Y.  426.) 

Long  t.  Warren. 

(CoiiH  of  Appeals  of  New  York.     Feb.  13, 1S77. ) 

1.  Fkaud — False   Representations  by  Vendok 

AS  TO  Obviols  Facts. 
TVhen  the  real  quality  of  property  sold  is  ob- 
vious to  ordinary  intelligence,  and  the  vendor 
and  vendee  have  equal  knowledge  or  equal  means 
of  acquiring  information,  and  the  truth  or  falsity 
of  representations  made  by  the  vendor  as  to  its 
quality  may  be  ascertained  by  the  vendee  by  the 
exercise  of  ordinary  inquiry  or  diligence,  and 
they  are  not  made  for  the  purpose  of  throwing 
him  off  his  guard  and  diverting  him  from  making 
inquiry  and  examination,  which  every  prudent 
person  ought  to  make,  the  vendee  has  no  ground 
of  action  for  fraud,  though  he  purchases  the  prop- 
erty in  reliance  upon  such  representations. 

2.  Same. 

In  an  action   for   false   representations   by  de- 
fendant, whereby  plaintiff  was   induced   to   pur- 
chase defendant's  farm,  it  appeared  that  defend- 
ant  represented   to   plaintiff   that  there  was  no 
q,uack  grass  oq  the  farm,  save  in  a  small  two-acre 
lot,  and  that  plaintiff,  relying  thereon,  purchased 
the  farm.     It  also  appeared  that,  before  purchas-  j 
ing,  the  plaintiff  walked  over  portions  of  the  farm 
with   his    brother-in-law,    both  of   whom   were  I 
farmers,  which   portions   contained   quack  grass  ' 
in  large  quantities,    and   tbis  could   have    been 
easily  perceived   on   passing  over  them.     Held,  } 
that  "plaintiff  had  equal  means  of  knowing  of  the  i 
existence  of  the  quack  grass,  and   could   not  re- 
cover for  the  false  representations  of  defendant. 

Appeal  from  supreme  court,  general 
term,  fourth  department. 

Action  by  Edward  Long  against  Oscar 
F.  Warren  to  recover  damages  alleged  to 
have  been  sustained  bj'  plaintiff  by  false 
representations  of  defendant  in  the  sale 
of  a  farm.  The  case  was  submitted  to  a 
referee,  who  reported  fur  plaintiff.  The 
judgment  entered  on  such  report  was  re- 
ver.sed  by  the  general  term.  From  the 
judgment  of  the  general  term  plaintiff  ap- 
pealed. 

M.  H.  Peck,  for  appellant.  H.E.  tiickels, 
for  respondent. 

FoLGEH,  J.  This  is  an  action  at  law  to 
recover  damages  for  false  representations 
anfl  deceit  in  the  sale  of  a  farm  by  the  de- 
fendant to  the  plaintiff.  The  representa- 
tions alleged  to  be  false  were  as  to  the 
non-existence  on  the  farm  of  a  noxious 
weed  or  grass  known  as  "quack  grass." 
It  is  alleged  that  the  plaintiff  asked  the 
defendant  if  there  was  any  quack;  and  the 
defendant  referred  to  a  little  piece  north 
of  the  garden  and  the  barn,  about  one  and 
one-half  or  one  and  three-fourths  acres, 
and  said  that  there  was  quack  there,  and 
that  he  dug  it  out.  The  plaintiff  then 
asked  him  if  there  was  any  other  quack, 
and  he  said,  "No."  there  was  none  on  the 
farm  except  one  little  piece,  and  that  the 
boys  had  raked  all  out.  This  is  the  testi- 
mony of  the  plaintiff,  and  tends  to  prove 
a  representation  that  there  was  but  one 
piece  of  quack  grass  on  the  farm, in  extent 
not  more  than  one  and  three-quarters 
acres.  The  defendant's  testimony  is  that 
in  passing  over  the  farm  the  plaintiff  and 
he  went  to  wliat  he  called  the  "quack  lot," 


next  the  road,  above  the  barn  ;  that  as  they 
went  into  that  lot  the  plaintiff  said: 
"This  devilish  stuff  is  all  over  the  farm, 
ain'tit?"  The  defendant  told  him  :  "No, 
it  was  not;  that  I  did  not  know  of  bat 
two  other  patches,  where  I  had  cultivated 
land ;  there  might  be  quack  in  some  of  the 
fields  I  had  not  plowed,  but  I  had  not  dis- 
covered any.  I  told  him  one  was  by  the 
sand-bank,  and  the  other  in  next  lot  wtst.  " 
There  is  quite  a  difference  in  the  version  ot 
the  statements  made  on  that  occasion,  as 
given  by  the  plaintiff  or  the  defendant. 
There  was  but  one  other  person  present, 
one  Kinney,  who  was  a  witness  at  the 
trial.  He  says  that  "the  subject  of  quack 
grass  was  mentioned.  Plaintiff  asked  de- 
fendant something  about  quack  grass, 
and  defendant  said  there  was  some  on  cor- 
ner lot  north  and  east  of  farm,  an  acre  and 
a  half,  and  that  he  had  had  his  boys  rak- 
ing it  out  and  bui'ning  it.  I  had  seen  stuff 
burning  ;  said  they  had  been  burning  it  and 
thought  that  they  had  got  it  out.  I  have 
no   distinct  recollection  of  anything  else.  " 

I  can  but  conclude  that,  on  the  differ- 
ence between  the  plaintiff  and  defendant 
as  to  what  was  said  by  the  defendant  on 
the  subject  of  the  quack  grass, the  plain- 
tiff is  corroborated  to  a  considerable  ex- 
tent by  Kinne\%  and  that  the  preponder- 
ance of  the  testimony  is  that  the  defend- 
ant represented  that  there  was  but  cjne 
piece,  not  in  size  two  acres,  and  that  that 
had  been  probably  got  out.  This,  then, 
was  the  substance  of  the  representation 
made.  The  proof  is  ample  to  show  that 
it  was  false.  Without  recapitulating  the 
testimony',  it  suffices  to  say  that  it  estab- 
lishes that  there  were  many  places  on 
which  the  weed  was  growing;  that  the 
extent  of  it  was  twenty-five  acres,  or  near 
thereto;  and  that  it  was  in  vigorous  and 
luxuriant  condition. 

With  this  proof  of  the  extent  of  land 
affected  by  it,  and  the  vigor  of  the  growth 
of  it.  and  that  it  was  upon  tilled  as  well 
as  meadow  and  pasture  land,  and  some 
jH'oof  of  the  defendant's  knowledge  of  the 
presence  of  it  inlotsotherthan  that  named 
by  him,  it  is  impossible  to  conclude  that 
the  defendant  did  not  know  of  the  exist- 
ence of  it  on  the  farm  in  more  places  and 
to  greater  extent  than  he  described  to  the 
plaintiff,  and  that  he  is  chargeable  with 
a  sc'/enrer  of  the  falsity  of  his  representa- 
tion. With  the  facts  proven  that  the  plain- 
tiff made  particular  inquiry  of  the  defend 
ant  as  to  it;  that  the  extent  and  growth 
of  it  was  so  much  larger  than  the  defend- 
ant told  the  plaintiff;  and  with  the  fact, 
hereafter  to  be  noticed,  that  it  was  .a 
drawback  from  the  value  of  the  farm, 
both  for  cultivation  and  for  sale,— it  is 
not  possible  to  infer  that  the  defendant 
did  not  intend  to  have  the  plaintiff  believe 
the  statement  made  to  him,  or  that  he 
did  not  intend  to  deceive  the  plaintiff  to 
his  harm,  and  that  the  reT)resentation 
made  is  not  shown  to  be  a  false  and  fraud- 
ulent one. 

It  is  established  by  the  testimony  of  the 
plaintiff  thac  he  relied    upon    the  state- 


>64 


LAW  OF  TORTS. 


ment,  ami  was  indiicecl  by  it  to  make  the 
purchase  of  the  farm.  Scarcely  a  witness 
is  sworu  who  does  not  testify  that  the 
presence  of  quack  srass  in  the  soil  of  a 
farm,  to  the  extent  and  strength  of 
growth  shown  by  the  testimony,  was  a 
damage  to  the  farm  either  for  tillage  or 
for  the  market.  We  have,  then,  the  union 
of  fraud  and  damage  tht;rel)y,  which  are 
valid  to  give  cause  of  action.  Bayly  v. 
Merrel.  Cro.  Jac.  3S6. 

There  is  another  question  yet  to  be  deter- 
mined before  we  can  say  that  the  plaintiff 
may  recover.  It  does  not  appear  that 
the  defendant  used  any  artifice,  either  of 
word  or  act,  to  dissuade  or  turn  away  or 
hinder  the  plaintiff  from  making  inspec- 
tion of  the  farm  for  himself,  so  as  to  as- 
certain by  his  own  faculties,  and  those  of 
his  companion,  Kinney,  whether,  in  fact, 
there  was  more  of  the  (juack  grass  upon 
the  premises  than  the  defendant  had 
stated.  It  is  evident  that  he  had  the  op- 
portunity in  full  degree  to  make  a  per- 
sonal examination.  He  was  advised  by 
the  defendant's  declaration,  and  l)y  his 
own  view  of  it,  that  there  was  one  piece 
of  it  on  the  farm,  and  thus  made  aware 
of  the  possibility  of  it  being  in  the  whole 
soil.  He  had  twice  passed  across  the 
farm  in  company  with  Kinney.  He  had 
heard  and  read  of  this  grass;  indeed,  his 
inquiry  as  to  it  of  the  defendant  shows 
that  he  was  alive  to  the  evil  of  it.  He 
had  encountered  it  before  in  his  own 
garden,  and  had  seen  it  before  on  Sturte- 
vant's  farm,  more  than  once,  as  he  passed 
over  it.  He  had  been  a  farmer  all  his 
life,  and  knew  what  quack  grass  was. 
Kinney,  who  was  with  him,  and  is  his 
brother-in-law,  had  known  quack  grass 
for  the  10  years  before  the  trial ;  had  seen 
it  elsewhere,  on  other  land,  at  the  time 
they  passed  over  the  farm  ;  and  had  had 
It  on  his  own  farm,  his  business  being  that 
of  a  farmer,  and  had  got  a  good  deal  out  by 
raking  and  burning.  They  went  into  the 
orchard  on  their  first  visit  to  the  farm. 
They  went  across  the  wheat-field  then; 
and  on  the  second  visit,  they  went  across 
the  meadow  by  the  barn.  The  testimony 
shows  that  on  each  of  those  fields  this 
grass  was  rooted  and  growing,  on  some 
of  them  very  thrivingly,  so  that  the  plain- 
tiff, and  his  friend  who  was  with  him,  not 
only  had  unrestrained  opportunity  to  go 
into  every  field  on  the  farm,  and  use  their 
faculties  in  the  detection  of  any  noxious 
plants  growing  in  the  soil,  but  they  did, 
in  fact,  go  into  three  of  the  fields  in  which 
the  testimony  shows  that  it  was  growing, 
and  where  it  must  have  been  under  their 
feet.  Was  there  any  reason  in  the  nature 
of  things,  the  season  of  the  year,  the 
structure  and  appearance  of  the  plant, 
which  would  prevent  a  person  looking  for 
it  from  discovering  it?  It  was  in  the  lat- 
ter pai't  of  the  year  that  they  were  there, 
and  there  had  been  a  frost,  but  the 
strength  of  the  testimony  is  that  there 
was  no  snow  to  cover  the  ground.  The 
testimony  is  not  entireh^  unanimous  as 
to  the  ease  of  distinguishing  it  from  other 
grasses;  but  the  great  preponderance  is 
that  it  may  be  quite  readily  distinguished 
from  wheat  blades,  or  from  blades  of 
tiuuitny  grass,  the   two   plants    which   it 


most  resembles.  It  can  be  told  on  plowed 
land,  or  in  growing  wheat.  It  can  l)e 
seen  in  a  field  by  one  riding  along  the 
road.  It  is  plain  to  be  seen  ;  a  heavy  freeze 
changes  it.  but  a  frost  darkens  its  color, 
and  makes  it  the  more  conspicuous.  When 
eaten  down  close  by  animals,  it  is  not 
easily'  discernible,  and  some  of  the  pieces 
where  the  quack  was  had  been  pastured 
close.  But  the  strength  of  the  testimony 
is  that  it  is  readily  perceived  by  one  who 
IS  well  acquainted  with  it,  among  other 
grasses,  or  in  growing  wheat,  or  on 
plowed  land,  and  will  be  noticed  by  a  com 
mon  observer  as  he  passes  through  it,  or 
by  a  man  of  ordinary-  prudence,  who  is 
about  buj'ing  a  farm. 

One  is  forced  b3'  the  testimony  to  the 
conclusion  that  had  the  i»laintiff,  when  he 
was  on  the  farm  before  the  purchase,  tak- 
en ordinary  pains  to  look  out  for  this 
grass,  he  would  have  perceived  it  in  some 
other  lots  than  that  to  which  it  was  con- 
fined in  the  defendant's  representation. 
Now,  the  rale  of  law  in  such  case  was 
early  thus  laid  down.  Where  the  matter 
is  not  peculiarly  within  the  knowledge  of 
the  defendant,  and  the  plaintiff  has  the 
means  of  obtaining  correct  information, 
apart  from  the  statements  made  to  him, 
ho  may  not  recover  upon  the  false  declara- 
tion. Baylv  V.  Merrel,  supra.  To  the 
same  effect  is  Starr  v.  Bennett,  5  Hill,  303. 
The  representations  must  be  such  as  that 
the  vendee  has  no  means  of  discovering 
their  falsity.  If  he  does  not  avail  himself 
of  the  means  of  knowledge  within  his 
reach,  he  will  not  be  entitled  to  the  aid  of 
a  court  of  equity.  Tallman  v.  (ireen,  3 
Sandf.  437.  It  is  stated  in  Smith  v.  Country- 
man, 30  N.  Y.  681,  though  obiter  perhaps, 
that  statements  as  to  the  value  of  prop- 
erty, and  the  freedom  of  it  from  defects 
which  are  known,  to  the  one  making 
them,  to  exist,  but  which  might,  by  the 
exercise  of  reasonable  diligence,  be  discov- 
ered, do  not,  if  false,  vitiate  the  contract. 
In  Vernon  v.  Keys,  12  East,  632,  affirmed, 
4  Taunt.  488,  it  is  held  that  a  seller  is  un- 
questionably liable  to  an  action  of  deceit, 
if  he  fraudulently  misrepresent  the  quality 
of  the  thing  sold  to  be  other  than  it  is  in 
some  particulars  which  the  buyer  has  not 
e(iual  means  with  himself  of  knowing. 
And  see  1  Kent,  Comni.484,485;  vSherwood 
V.  Salmon,  5  Day,  439,  449.  At  nisi  prius  a 
limitation  to  the  rule  was  announced,  as 
follows:  Means  unused,  of  detecting  the 
falsity  of  representations,  are  not  a  bar  to 
an  action,  but  matter  for  the  jury,  and, 
if  the  jury  find  for  the  plaintiff,  will  not 
be  ground  for  a  reversal.  Bowring  v.  Ste- 
vens, 2  Car.  »&  P.  337.  But  we  are  not  now 
reviewing  the  verdict  of  a  jury  for  the 
plaintiff,  but  are  dealing  with  the  facts, 
as  a  general  proposition,  as  if  we  sat  in 
the  place  of  a  jury,  and  are  not  called  up- 
on to  sanction  or  disapprove  that  hold- 
ing at  nisi  prius.  It  is  also  said  in  one 
case,  that  the  very  fact  of  a  warranty 
having  been  given  would  tend  to  throw 
the  warrantee  off  his  guard,  and  prevent 
him  from  making  a  close  examination. 
Holyday  v.  Morgan.  28  Law  J.  Q.  B.  9. 
But  that  is  where  he  has  taken  a  cove- 
nant, and  may  rely  upon  it. 

In  the  kindred  cases  o°  faise  pretenses, 


CONFLICT  OF  LAWS  IN  REGARD  TO  TORTS. 


2G5 


the  criminal  law  holds  to  the  rule  we  have 
above  given,  and  it  has  been  resolved 
that,  where  an  exercise  of  conimon  pru- 
dence arid  caution  on  tlie  part  of  the 
prosecutor  would  have  enabled  him  to 
avoid  being-  imp(ised  upon  by  the  pre- 
tenses alleged,  there  can  l)e  no  conviction. 
People  V.  Williams.  4  Hill,  9.  The  rule  is 
summed  up  in  Addison  on  Torts.  When 
the  real  quality  of  the  thing  spoken  of  is 
an  object  obvious  to  ordinary  intelli- 
gence, and  the  parties  making  and  receiv- 
ing the  representations  have  equal  knowl- 
edge, or  equal  means  of  acquiring  informa- 
tion, and  the  truth  or  falsity  of  them  may 
be  ascertained  by  the  party  interested  in 
knowing,  by  the  exercise  of  ordinary  in- 
quiry and  diligence,  and  they  are  not 
made  for  the  purpose  of  throwing  him  off 
his  guard,  and  diverting  him  from  making 
inquiry  and  examination,  which  every 
prudent  person  ought  to  make,  there  is  no 
warranty-  of  the  truth  of  the  representa- 
tions, or  that  they  are  as  they  are  stated 
to  l)e,  and  there  are  no  "false  and  fraudu- 
lent Avarranties. "  within  the  legal  defini- 
tion of  that  phrase,  upon  which  an  action 
can  be  maintained. 

The  rule  is  comprehensively  stated  as 
follows,  by  the  United  States  supreme 
court  in  Slaughter's  Adm'r  v.  Gerson,  13 
Wall.  383:  "They  must  be  representations 
relating  to  a  matter  as  to  which  the  com- 
plaining party  did  not  have  at  hand  the 
means  of  knowledge.  Where  means  of 
knowledge  are  at  hand,  and  equally  avail- 
able to  both  parties,  and  the  subject  of  the 
purchase  is  equally  open  to  their  inspec- 
tion, if  the  purchaser  does  not  avail  him- 
self of  those  means  and  opportunities  he 
will  not  be  heard  to  say,  in  impeachment 
of  the  contract  of  sale,  that  he  was  drawn 
into  it  by  the  vendor's  misrepresenta- 
tions." See.  also,  Davis  v.  Sims,  Lalor, 
Supp.  234;  Rubber  Co.  v.  Adams.  23  Pick. 
2.')6;  Mooney  v.  Miller,  102  Mass.  220. 
Some  of  the  cases  cited  were  of  sales  of 
land. 

The  testimony  in  this  case,  to  which  we 
have   recurred  as  above  stated,  brings  the 

(See,  also,  Leavitt  v.  Fletcher,  60  N.  H.  1S2;  Studer  v.  Bleistein,  115  N.  Y.  316,  22  N.  E.  Rep.  2^; 
Brown  v.  Leach,  107  Mass.  364;  Rubber  Co.  v.  Adams,  23  Pick.  256.) 


plaintiff  within  the  force  of  the  rules  we 
have  above  set  forth.  This  (juack  grass 
was  an  object  obvious  to  the  intelligence 
of  the  plaintiff.  He  had  equal  means  with 
the  defendant  of  acquiring  information, 
within  the  meaning  of  the  rule;  for  it  did 
not  require  weeks  or  days  upon  the  farm, 
or  actual  tillage  of  it,  but  only  the  exer- 
ci.i?e  of  the  faculty  of  sight  while  passing 
over  the  farm.  The  truth  or  falsity  of  the 
representations  could,  bj'  the  exercise  of 
ordinary  diligence  in  examination,  have 
been  made  known.  The  inquiry  and  ex- 
amination was  one  which  a  prudent  per- 
son ought  to  have  made,  with  the  means 
and  opportunity  so  ready. 

The  learned  counsel  for  the  appellant 
makes  the  claim,  in  his  printed  points, 
that  the  plaintiff  and  his  friend  Kinney  did 
exercise  all  the  care  and  precaution  of  an 
ordinarily  prudent  man.  The  testimony 
does  not  sustain  this.  There  is  no  proof 
that  they  examined  or  looked  with  a  view 
to  discover  the  quack  if  itv^'as  there.  They 
testify-  that  they  did  not  discover  it ;  not 
that  they  tried  to.  They  did  not  go  over 
the  farni  thoroughly,  and  with  a  view  to 
find  it  there,  if  it  was  there  growing;  nor 
on  the  lots  which  they  entered  upon  was 
their  attention  upon  this  matter  and  an 
inspection  kept  up,  wnich,  as  we  have 
seen,  w^ould  have  necessarily  discovered  it. 
The  proof  of  its  existence  on  the  farm,  in 
excess  of  the  defendant's  statement,  shows 
it  is  so  luxuriant  in  growth,  so  close  in  its 
connection  stalk  to  stalk,  and  so  conspic- 
uous to  observers  having  no  interest  in 
the  question  of  its  presence  or  absence,  as 
that  it  is  bej'ond  belief  that  an  attempt 
to  find  it,  made  before  the  purchase, 
would  not  have  disclosed  it.  Hence  the 
order  of  the  general  term  should  be  af- 
firmed, and  judgment  absolute  given  for 
the  defendant. 

Church,  C.  J.,  and  Allen  and  Miller, 
JJ.,  concur.  Rapallo,  Andrews,  and 
Earl,  J.T.,  dissent. 

Order  affirmed,  and  judgment  accord- 
ingly. 


CONFLICT  OF  LAWS  IN  REGARD  TO  TORTS. 


(84  N.  Y.  48.) 

Leonard  v.  Columbia  Steam  Nav.  Co. 

(Cow-t  of  Appeals  of  New  York.     Feb.  8,  1881.) 

1.  Conflict  of  Laws  —  Action  Given  by  Stat- 
ute— Lex  Foui. 
"Where  the  statutes  of  one  state  give  to  the  ex- 
ecutor or  administrator  of  a  deceased  person  a 
right  of  action  to  recover  damages  for  his  death, 
caused  by  negligence,  such  an  action  may  be 
maintained  in  the  courts  of  another  state  having 
a  substantially  similar  law,  on  proof  of  the  law 
of  the  former  state.  In  such  case  the  action  is 
on  the  same  footing  as  to  its  transitoi'y  nature  as 
an  action  of  tct  at  common  law. 


2.  Executors  and  Administrators — Actions  bt. 
Letters  of  administration  granted  by  a  surro- 
gate are  conclusive  as  to  the  authority  of  the  ad- 
ministrator therein  named  to  bi'ing  an  action 
given  by  law  to  the  personal  representatives  of 
one  deceased,  in  an  action  by  him  under  such  a 
law. 

3.  Judgment — Correction. 

Where  interest,  not  given  by  the  verdict,  is  in- 
serted in  the  judgment  without  authority,  the 
proper  remedy  is  by  motion  to  correct  the  judg- 
ment, and  not  by  appeal. 

Appeal  from  supreme  court,  general 
term,  first  department. 


266 


LAW  OF  TORTS. 


Action  by  Joseph  Leonard,  as  adminis- 
trator, etc.,  against  the  Columbia  Steam 
Navigation  Company. to  recover  damages 
for  the  death  of  plaintiff's  intestate  caused 
by  alleged  negligence  of  defendant.  Ver- 
dict and  judgment  for  plaintiff.  The  judg- 
ment was  affirmed  by  the  general  term  on 
appeal.     Defendant  again  appealed. 

Dennis  McMahon,  for  appellant.  Chris- 
topher Fine,  for  respondent. 

Miller,  J.  The  intestate  was  killed  by 
reason  of  the  axplosion  of  a  boiler  of  a 
steamer  within  the  boundaries  of  th^ 
state  of  Connecticut,  which  the  jury  found 
was  occasioned  by  the  negligence  of  the 
defendant,  who  was  the  owner  thereof. 
The  statutes  of  that  state  created  a  cause 
of  action  in  favor  of  and  for  the  benefit  of 
the  next  of  kin  and  heirs  at  law  in  certain 
cases  which  are  enumerated.  By  the  Re- 
vision (Ed.  1875,)  §  3,  p.  488,  a  right  of  ac- 
tion is  given  to  the  representatives  of  a  per- 
son killed  by  the  negligence  of  any  railroad 
company  or  its  servants,  to  recover  dam- 
ages to  the  amount  of  $5,000.  The  com- 
mon-law rule  as  to  actions  for  injuries  to 
the  person  is  changed,  and  it  is  provided 
that  an  action  to  recover  damages  for  in- 
jury to  the  pei'sou,etc.,  shall  not  abate  by 
reason  of  death,  and  that  the  executor  or 
administrator  may  prosecute  the  same, 
and  that  all  actions  for  injuries  to  the 
person,  whether  the  same  do  or  do  not  in- 
stantaneously or  otherwise  result  in  death, 
shall  survive  to  his  executor  or  adminis- 
trator, etc.  St.  Conn.  (Revision  1875,)  c. 
6,  tit.  19,  §§  8,  9.  It  is  held  that,  under 
these  provisionsof  the  statutes  of  Connecti- 
cut, an  action  lies  in  that  state  in  favor 
of  the  representatives  of  a  deceased  party 
to  recover  damages.  Murphy  v.  Railroad 
Co.,  30  Conn.  184,  29  Conn.  496;  Soule  v. 
Railroad  Co.,  24  Conn.  575.  The  construc- 
tion thus  placed  by  the  courts  of  another 
state  upon  the  statutes  of  that  state 
should  be  followed,  and  is  controlling  in 
the  tribunals  of  such  state.  Jessup  v. 
Carnegie,  80  N.  Y.  441 ;  Hunt  v.  Hunt,  72 
N.  Y.  218. 

At  common  law,  personal  actions, 
whether  ex  contractu  or  ex  delicto,  are 
transi  tory,(  Bouv.  Law  Diet. "  Personal  Ac- 
tions," "Transitory  Actions;)  "  and  these 
actions  may  be  brought  anywhere,  and 
are  governed  by  the  7ex  lori,  (Bouv.  Law 
Diet.;  Story,  Confl.  Laws,  §  307,  a,  e.) 
The  cause  of  action  which  the  statutes  of 
Connecticut  created  is  transitory  in  its 
nature,  and,  unless  excepted  from  the  gen- 
eral rule  as  to  the  place  whero  such  action 
may  be  brought,  can  be  enforced  in  the 
courts  of  this  state  or  any  other  forum, 
provided  the  laws  of  that  forum  do  not 
forbid  its  maintenance.  In  this  state  it  is 
held  that  actions  will  lie  for  injuries  to  the 
person  committed  outside  of  the  terri- 
torial limits  of  the  state.  In  Smith  v.  Bull, 
17  Wend.  323,  it  was  decided  that  an  ac- 
tion for  an  assault  and  battery  committed 
in  the  state  of  Pennsj'lvania  could  be 
maintained  in  any  court  of  common  pleas 
of  this  state.  The  rule,  no  doubt,  is  that 
all  common-law  actions  for  an  injury  in 
a  foreign  country'  are  transitory  in  their 
character,  and  may  be  brought  in  another 
state  or  country   besides   that   in   which 


they  originated  In  contemplation  of  law, 
the  injury  arises  anywhere  and  every- 
where. The  right  to  recover  in  such  cases 
rests  upon  the  presumption  that  the  com- 
mon law  prevails  in  such  other  state,  and 
that  the  injured  party  could  have  recov- 
ered there  had  the  action  been  brought  in 
such  state.  The  remedy  in  such  cases  is 
given  by  the  courts  of  one  country  or 
state  upon  the  principle  of  comity  which 
is  due  by  one  sovereign  state  or  country 
to  another  under  similar  circumstances. 
While  these  general  rules  are  recognized 
in  numerous  decisions  in  the  courts  of  this 
state,  it  is  also  held  that  the  statutes  giv- 
ing an  action  for  damages  resulting  from 
death  caused  by  culpable  negligence  do 
not  apply  where  the  injury  was  not  com- 
mitted in  this  state,  but  in  a  foreign 
country,  unless  it  is  proved  that  the  laws 
of  that  country  are  of  a  similar  character. 
Whitford  v.  Railroad  Co.,  23  N.  Y.  465; 
Beach  v.  Steam-Boat  Co.,  30  Barb.  433; 
Crowley  V.  Railroad  Co.,  Id.  99;  McDon- 
ald V.  Mallory,  77  N.  Y.  547. 

These  decisions  rest  upon  the  principle 
that  the  statutes  of  this  state  can  have 
no  operation  in  a  foreign  country  where 
similar  statutes  do  not  exist,  and  that  it 
is  not  a  legitimate  presumption  that  the 
statute  laws  of  other  states  or  countries 
are  similar  to  our  laws.  In  Whitford  v. 
Railroad  Co.,  supra,  the  injury  was  done  in 
New  Grenada.  After  considering  the  effect 
of  the  statute  in  a  foreign  country,  Denio, 
J.,  remarks:  "Whatever  liability  the  de- 
fendants incurred  by  the  laws  of  Nevp^ 
Grenada  by  the  act  mentioned  in  the  com- 
plaint might  well  be  enforced  in  the  courts 
of  this  state,  *  *  *  but  the  rule  of 
decision  would  still  be  the  law  of  New 
Grenada,  which  the  court  and  jury  must 
be  made  acquainted  with  by  the  proof  ex- 
hibited before  them."  The  doctrine  of 
this  case  is  approved  in  McDonald  v.  Mal- 
lory, supra,  and  it  is  laid  down  by  Ra- 
PALLO,  J.,  that,  where  the  wrong  is  com- 
mitted in  a  foreign  state  or  country,  no 
action  "can  be  maintained  here  without 
the  proof  of  existence  of  a  similar  statute 
in  the  place  where  the  wrong  was  com- 
mitted." The  rule  here  laid  down  is  just 
and  reasonable,  and  it  is  not  essential  that 
the  statute  should  be  precisely  the  same 
as  that  of  the  state  where  the  action  is 
given  by  law  or  where  it  is  brought,  but 
merely  requires  that  it  should  be  of  a  sim- 
ilar import  and  character.  The  statute 
in  this  state  is  certainly  of  the  same  nat- 
ure, and  the  similaritj'  is  such  as  to  au- 
thorize the  conclusion  that  it  is  founded 
upon  the  same  principle,  and  possesses  the 
same  general  attributes,  as  thestatutes  of 
Connecticut  which  have  been  cited.  The 
same  remedy  was  to  be  accomplished,  and 
an  examination  of  the  different  provis- 
ions evinces  an  agreement  in  both  of  th& 
statutes  as  to  their  main  features,  and 
that  they  are  substantially  alike  and  to 
the  same  effect  as  to  the  survivorship  of 
the  action.  In  fact,  when  there  are  simi- 
lar statutes  instead  of  the  common  law, 
the  right  to  recover  damages  stands  i)re- 
cisely  the  same  as  if  the  common  law  in 
both  states  relating  to  the  subject  pre- 
vailed. 

The  doctrine  that  an  acti-.n  will  lie  whei> 


CONFLICT  OF  LAWS  IN  REGARD  TO  TORTS. 


267 


the  common  law  or  the  statutes  of  differ- 
ent states  or  countries  correspond,  is  sus- 
tained by  numerous  authorities.  Madra- 
zo  V.  AVilles,  3  Barn.  &  Aid.  353;  Melan  v, 
Duke  de  Fitzjames,  1  Bos.  &  P.  138-  Mos- 
tyn  V.  Fabri^as,  Cowp.  161;  1  Smith, 
Lead.  Cas.  SJ63  ;  Shipp  v.  McCraw,3  Murph. 
463;  Wall  v.  Hoskins,  5  Ired.  177;  Stout  v. 
^ood,  1  Blackf.  71. 

We  are  referred  to  a  number  of  cases  by 
the  learned  counsel  for  the  appellant  as  au- 
thority for  the  position  that  the  death 
Happening  in  the  state  of  Counecticut, 
and  there  not  being  shown  to  have  been 
any  representative  there  who  had  taken 
out  letters  of  administration,  an  admin- 
istrator in  New  York  has  no  right  to 
bring  such  an  action  in  the  courts.  The 
cases  cited  are  the  decisions  of  other  state 
courts,  and  a  brief  reference  to  them  will 
indicate  how  far  they  should  be  allowed 
to  bear  upon  the  question  considered.  In 
Richardson  v.  Railroad  Co.,  98  Mass.  85, 
the  plaintiff  brought  an  action  for  dam- 
ages under  the  statute  of  New  York  for 
the  killing  of  the  intestate  in  New  York. 
There  was  no  statute  in  Massachusetts 
of  a  similar  character,  and  it  was  held  that 
the  action  could  not  he  maintained.  It 
will  be  noticed  that  the  statutes  of  the 
different  states  were  not  of  a  similar  nat- 
ure, and  the  common-law  rule  prevailed 
in  Massachusetts.  The  case,  therefore,  is 
not  analogous.  In  Woodard  v.  Rail- 
road Co..  10  Ohio  St.  121,  it  was  held  that 
an  administrator  in  Ohio  could  not  main- 
tain an  action  under  the  statute  of  Illi- 
nois authorizing  the  personal  representa- 
tive of  a  person  who  comes  to  his  death 
by  a  wrongful  act  of  another  to  sue  for 
damages.  It  was  questioned  whether  the 
petition  went  far  enough  to  make  out  an 
action  under  the  statute  of  Illinois,  or 
whether  an  administrator  appointed 
under  the  laws  of  Illinois  might  not  main- 
tain snch  action.  The  question  now  pre- 
sented is  not  fully  considered,  and  there- 
fore the  decision  has  no  force  as  a  case  in 
point.  In  Needham  v.  Railway  Co.,  38  Vt. 
295,  the  death  occurred  in  the  state  of  New 
Hampshire,  and  there  was  no  law  exist 
ing,  or  alleged  to  exist,  which  gave  the 
plaintiff  a  right  of  action.  In  State  v. 
Railroad  Co.,  45  Md.  41.  there  was  no  alle- 
gation that  there  was  any  statute  in  the 
state  where  the  death  was  caused  creating 
a  cause  of  action,  and  it  was  held  that,  in 
the  absence  of  any  proof,  there  was  no 
presumption  in  favor  of  a  positive  statute 
law  of  tlie  state,  but  it  must  be  presumed 
that  the  common    law    prevailed.     The 

(See,  also.  Wooden  v.  Railroad  Co.,  126  N.  Y.  10,  26  N.  E.  Rep.  1050;  Le  Forest  v.  Tolman,  117 
Mass.  109;  McLeod  v.  Railroad  Co.,  58  Vt.  727,  6  Atl.  Rep.  648;  Niles  v.  Howe,  57  Vt.  388;  Dennick  v. 
Railroad  Co.,  103  U.  S.  11;  MannviUe  Co.  v.  Worcester,  138  Mass.  S9;  Davis  v.  Railroad  Co.,  143  Mass. 
301,  9  N.  E.  Rep.  815;  Edgerly  v.  Bush,  81  ^.  Y.  199;  Knight  v,  RaUroad  Co.,  108  Pa.  St.  250;  Boyce 
V.  Railroad  Co.,  63  Iowa,  70, 18  N.  W.  Rep.  673.) 


case,  therefore,  is  not  in  point.  In  Rail- 
road Co.  V.  Lacy,  43  Ga.  461,  the  same  gen- 
eral state  of  facts  existed  and  the  same 
rule  was  recognized.  Marcy  v.  Marcy,  32 
Conn.  308,  does  not  directly  affect  the  point 
considered. 

From  this  review  of  the  cases  it  is  man- 
ifest that  the  authorities  cited  do  not  sus- 
tain the  position  that  this  action  cannot 
be  maintained  in  this  state  under  the  cir- 
cumstances existing,  and  we  are  of  tt& 
opinion  that  the  right  of  the  administra- 
tor to  bring  the  same  is  clear  and  be- 
yond question.  The  letters  of  administra- 
tion granted  by  the  surrogate  are  conclu- 
sive as  to  his  authority.  Roderigas  v. 
Institution,  63  N.  Y.  460;  Kelly  v.  West, 
80  N.  Y.  139.  The  letters  on  their  face 
show  that  the  intestate  died  "leaving 
assets"  in  the  state  and  in  thecountj'  of 
New  York,  and  this  gave  the  surrogate 
of  the  county  of  New  York  jurisdiction. 
3  Rev.  St.  (6th  Ed.)  p.  76,  §  24.  Nor  was  it 
essential,  we  think,  that  letters  should 
have  first  been  taken  out  in  the  state  of 
Counecticut.  Be  that  as  it  may,  however, 
the  letters  issued  by  the  surrogate  are 
conclusive  as  to  the  right  of  the  admin- 
istrator to  maintain  this  action.  In  re- 
gard to  the  question  as  to  the  right  to 
recover  interest,  there  is  no  evidence  that 
the  interest  was  added  to  the  verdict  up- 
on the  trial.  It  does  appear,  however,  to 
have  been  inserted  in  the  judgment  from 
the  record  before  us.  We  may  assume 
that  it  was  added  on  the  taxation  of  the 
costs,  and  the  question  can  only  be  prop- 
erly reached  by  a  motion  to  retax  costs 
or  to  correct  the  judgment  at  special  term, 
and  not  by  appeal.  See  Code  Civil  Proc. 
§§  1346,  1349.  Where  aclause  is  inserted  in 
the  judgment  without  authority,  the  prop- 
er remedy  is  by  motion  to  correct  the  judg- 
ment, and  not  by  appeal.  People  v.  Gofif, 
52  N.  Y.  4;>4;  Kraushaar  v.  Meyer,  72  N.  Y. 
602;  De  Lavallette  v,  Wendt,  75  N.  Y.  579. 
There  was  no  error  in  the  refusal  of  the 
judge  to  charge  any  of  the  requests  sub- 
mitted to  him  by  the  defendant's  counsel, 
and,  after  a  careful  examination,  we  are 
unable  to  discover  that  any  error  was 
committed  by  the  judge  in  the  various 
rulings  as  to  the  admissibilitj'  of  evidence. 

After  full  consideration,  we  think  that 
the  case  was  properly  disposed  of  at  the 
circuit,  and  that  the  judgment  should  be 
affirmed. 

All  concur,  except  Rapallo,  J.,  absent; 
FoLGKP,  C.  J.,  ccmcurring  in  result. 
Judgment  affirmed. 


Em)  07  TOBTBi 


INDEX. 


ABANDONMENT. 

Of  civil  action  by  the  plaintiff,  by  neglect  to  pro- 
ceed with  it,  is  a  final  termination  thereof,  on 
which  the  defendant  may  maintain  an  action  for 
malicious  prosecution. — Cardival  v.  Smith,  102. 


ABATEMENT  AND  REVIVAL 
OF  ACTIONS. 

By  the  common  law,  actions  for  injuries  to  the 
person  abate  by  death,  and  cannot  be  revived  or 
maintained  by  the  executor  or  the  heir. — Mobile 
Life  Ins.  Co.  v.  Brame,  348. 

ABATEMENT   OF   NTTISANCES. 

Entry  on  land  of  another  to  abate  a  nuisance 
thereon,  without  previous  request  or  notice  to  the 
occupant  to  remove  it,  not  justifiable  in  the  case  of 
a  nuisance  merely  continued  by  such  occupant  as 
alienee  of  the  premises,  where  he  was  not  himself 
the  wrong-doer  by  having  created  the  nuisance  or 
neglected  to  perform  some  obligation  by  the  breach 
of  which  it  was  created. — Jones  v.  Williams,  189. 

He  who  undertakes  to  abate  a  nuisance  proceeds 
at  his  peril,  taking  the  risk  of  being  able  to  show 
that  the  thing  complained  of  was  in  fact  a  nuisance ; 
if  he  errs  in  judgment,  he  is  answerable  in  dam- 
ages ;  if  a  breach  of  the  peace  is  involved,  he  is 
liable  to  indictment.  —  Crosland  v.  Borough  of 
Pottsville,  190. 

Where  a  person  entitled  to  a  limited  right  exer- 
cises it  in  excess,  so  as  to  produce  a  nuisance,  it 
may  be  abated  to  the  extent  of  the  excess;  and  if 
the  nuisance  cannot  be  abated  without  obstruct- 
ing the  right  altogether,  the  exercise  of  the  right 
may  be  entirely  stopped  until  means  have  been 
taken  to  reduce  it  within  its  proper  limits. — Cros- 
land V.  Borough  of  Pottsville,  190. 

ABSCONDING  DEBTORS. 

Aiding  debtor  to  abscond,  and  purchasing  from 
him  property  subject  to  attachment,  not  a  ground 
of  action  by  a  creditor  having  no  lien  or  claim  on 
the  property. — Lamb  v.  Stone,  8. 

ABUSE  OF  PROCESS. 

Action  maintainable  for  malicious  abuse  of  pro- 
cess.—Grainger  v.  Hill,  107. 

ACCIDENT. 

No  liabilityin  tort  for  purely  accidental  injuries. 
— Bi-own  v.  Kendall,  51. 

To  exempt  a  defendant  from  liability  on  the 
ground  that  the  injury  to  plaintiff  was  an  inevita- 
ble accident,  it  must  be  such  an  accident  as  de- 
fendant could  not  have  avoided  by  the  use  of  the 
kind  and  degree  of  care  necessary  to  the  exigency, 
and  in  the  circumstances  in  which  he  was  placed. 
— Brown  v.  Kendall,  53. 

ACQUIESCENCE. 

In  nuisance,  less  than  20  years,  not  a  bar  to 
equitable  relief,  unless  it  amount  to  laches,  or  cre- 
ate an  estoppel. — Campbell  v.  Seaman,  164. 


ACTION. 

Violation  of  legal  right  or  legal  duty  necessary 
to  sustain  action  of  tort. — Guest  v.  Reynolds,  1; 
Miller  v.  Woodhead,  4;  Gramlich  v.  Wurst,  5; 
Rich  V.  New  York  Cent.  &  H.  R.  R.  Co.,  60. 

Action  cannot  be  maintained  for  damage  caused 
by  improvements  made  on  one's  own  land,  in  the 
exercise  of  his  legal  rights  therein,  without  viola- 
tion of  any  legal  right  of  the  person  damaged. — 
Thurston  v.  Hancock,  23;  Ocean  Grove  Camp- 
Meeting  Ass'n  V.  Commissioners  of  Asbury  Park, 
26 ;  Smith  v.  Thackerah,  30. 

No  right  of  action  for  negligence  unless  there  is 
a  violation  of  legal  duty. — Larmore  v.  Crown  Point 
Iron  Co.,  219. 

Violation  of  merely  moral  right  or  duty  not 
ground  of  action. — Lamb  v.  Stone,  8;  Derry  v. 
Peek,  256. 

Action  may  be  maintained  for  violation  of  legal 
rights  created  by  statute. — Willy  v.  MuUedy,  16. 

May  be  maintained  for  a  breach  of  a  duty  im- 
posed by  statute  upon  any  citizen,  by  one  having 
a  special  interest  in  the  performance  thereof,  to 
whom  damage  is  caused  by  such  breach. — Willy 
V.  MuUedy,  16. 

May  be  maintained  for  violation  of  right  to  vote. 
—Webb  V.  Portland  Manuf'g  Co.,  20;  Smith  v. 
Thackerah,  30. 

May  be  maintained  for  fraud,  coupled  with  dam- 
age.— Upton  V.  Vail,  31;  Hickey  v.  Morrell,  262. 

May  be  maintained  for  malicious  prosecution  of 
a  civil  proceeding;  at  least  if  there  has  been  dep- 
rivation of  liberty,  or  taking  of  property. — Car- 
dival V.  Smith,  102;  Pope  v.  Pollock,  104;  Bump  v. 
Betts,  107. 

May  be  maintained  for  an  arrest  which  is  a  ma- 
licious abuse  of  process. — Grainger  v.  Hill,  107. 

May  be  maintained  for  damages  for  a  trespass 
without  wrongful  intent. — Bessey  v.  Olliot,  49; 
Weaver  v.  Ward,  49;  Guille  v.  Swan,  49;  Hobart 
v.  Hagget.  195;  Dexter  v.  Cole,  195:  Laverty  v. 
Snetheu,  197. 

Injur  in.  sine  damno  gives  a  right  of  action. — 
Dixon  V.  Clow,  18;  Webb  v.  Portland  Manuf'g  Co., 
19. 

Action  cannot  be  maintained  for  act  not  itself 
unlawful,  where  no  damage  is  sustained. — Roberts 
V.  Roberts,  28 ;  Smith  v.  Thackerah,  30 ;  Upton  v. 
Vail,  31. 

Cannot  be  maintained  for  a  nuisance  causing  in- 
jury to  plaintiff,  unless  he  shows  some  special  dam- 
age to  his  person  or  property  differing  in  kind 
from  that  sustained  by  other  persons  subjected  to 
inconvenience  and  injury  from  the  same  cause. — 
Wesson  v.  Washburn  Iron  Co.,  184. 

May  be  maintained  for  untrue  statement  dispar- 
aging goods  of  another,  made  without  lawful  occa- 
sion, and  causing  him  special  damage. — Western 
Counties  Manure  Co.  v.  Lawes  Chemical  Manure 
Co.,  11. 

Cannot  be  maintained  for  acts  of  mere  competi- 
tion in  business,  carried  on  for  the  purpose  of 
gain,  and  without  actual  malice,  even  though  in- 
tended to  drive  a  rival  in  trade  away  from  his  place 
of  business,  and  thou{ih  that  intention  be  actually 
carried  into  effect — Van  Horn  v.  Van  Horn,  110. 

May  be  maintained  for  a  combination  or  conspir- 
acy, by  fraudulent  and  malicious  acts,  to  drive  a 
trader  out  of  business,  resulting  in  damages. — Van 
Horn  V.  Van  Horn,  109. 

Could  not  be  maintained,  at  common  law,  for 
damages  for  an  act  causing  the  death  of  a  human 
being,  though  clearly  involving  pecuniary  loss. — 
Mobile  Life  Ins.  Co.  v.  Brame,  247. 

Cannot  be  maintained  even  for  tort,  where  dam- 


(269) 


270 


INDEX. 


ages  ^c  too  remote,  contingent,  or  indefinite. — 
Lamb  v.  Stone,  9, 10;  Clark  v.  Chambers,  32;  Van- 
denburgh  v.  Truax,  37;  Lowery  v.  Manhattan  Ry. 
Co.,  8S;  Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg, 
41 ;  Moody  v.  Baker,  44 ;  Bowen  v.  Hall,  46. 

Cannot  be  maintained  by  insurance  company 
against  one  who  willfully  fired  a  building  which  it 
had  insured,  whereby  it  was  compelled  to  pay  the 
loss.— Mobile  Life  Ins.  Co.  v.  Brame,  248. 

Cannot  be  maintained  against  a  witness  for  giv- 
ing false  testimony  in  a  suit  by  which  another  is 
injured. — Rice  v.  Coolidge,  13;  Mobile  Life  Ins. 
Co.  V.  Brame,  248. 

May  be  maintained  against  one  who  suborns  wit- 
nesses to  swear  falsely  to  defamatory  statements 
concerning  another,  in  a  suit  to  which  neither  of 
them  is  a  party.— Rice  v.  Coolidge,  13. 

May  be  maintained  for  loss  of  a  marriage  by 
plaintiff  in  consequence  of  words  spoken  of  plain- 
tiff by  defendant,  although  such  words  are  not  in 
themselves  actionable,  and  although  plaintiff  has 
a  remedy  for  breach  of  the  contract  of  marriage. 
— Moody  V.  Baker,  44. 

Cannot  be  maintained  by  contractor  for  support 
of  town  paupers  against  a  person  inflicting  per- 
sonal injury  upon  such  a  pauper,  on  the  ground 
that  therebj^the  contractor  was  subjected  to  extra 
expenditure. — Mobile  Life  Ins.  Co.  v.  Brame,  248. 

May  be  maintained  against  one  who  entices  away 
a  servant  while  under  contract  of  employment 
■with  plaintiff  for  a  certain  term  under  a  specified 
penalty,  notwithstanding  plaintiff  has  a  remedy  on 
such  contract  against  the  servant.  —  Moody  v. 
Baker,  45. 

Cannot  be  maintained  by  one  party  to  a  contract 
against  a  third  person  for  persuading  the  other 
party  to  the  contract  not  to  perform  it. — Mobile 
Life  Ins.  Co.  v.  Brame,  248. 

It  seems  that  one  who  procures  another  to  break 
a  contract  by  the  latter  with  a  third  party  is  re- 
sponsible for  the  breach  only  where  malice  to  such 
third  person  is  shown,  giving  a  distinct  cause  of 
action  for  the  malice  which  caused  the  breach  of 
contract  resulting  in  damages  to  him. — Van  Horn 
v.  Van  Horn,  110. 

Wherever  a  man  does  an  act  whicb,  in  law  and 
in  fact,  is  a  wrongful  act,  and  such  an  act  as  may, 
as  a  natural  and  probable  consequence  of  it,  pro- 
duce injury  to  another,  and  which,  in  the  particu- 
lar case,  does  produce  such  an  injury,  an  action  on 
the  case  will  lie.  If  these  conditions  are  satisfied, 
the  action  does  not  the  less  lie  because  the  natural 
and  probable  consequence  of  the  act  complained  of 
is  an  act  done  by  a  third  person;  or  because  such 
act  so  done  by  the  third  person  is  a  breach  of  duty 
or  contract  by  him,  or  an  act  illegal  on  his  part,  or 
an  act  otherwise  imposing  an  actionable  liability 
on  him. — Bowen  v.  Hall,  47. 

In  cases  of  contract,  where  there  is  no  legal  duty 
independent  of  the  contract,  one  not  in  privity 
with  a  party  to  the  contract  cannot  recover  against 
him  in  tort  for  an  injury  involving  a  breach  of  the 
contract. — Winterbottom  v.  Wright,  62. 

Where,  in  cases  of  contract,  the  law  imposes  a 
duty  towards  thii'd  persons  who  are  not  parties  to 
the  contract,  such  persons  may  recover  in  an  ac- 
tion of  tort. — Thomas  v.  Winchester,  65. 

Letters  of  administration  granted  by  a  surrogate 
are  conclusive  as  to  the  authority  of  the  adminis- 
trator therein  named  to  bring  an  action  given  by 
law  to  the  personal  representatives  of  one  de- 
ceased, in  an  action  by  the  administrator  under 
such  a  law. — Leonard  v.  Columbia  Steam  Nav.  Co., 
265. 

A  single  trespass  may  be  committed  on  several 
closes,  and  one  action  maintained  therefor  as  one 
trespass. — Halligan  v.  Chicago  &  R.  I.  R.  Co.,  154. 

Different  acts  of  several  defendants,  being  all 
parts  of  one  scheme  to  injure  plaintiff,  constitute 
but  one  cause  of  action. — Rice  v.  Coolidge,  13. 

Personal  actions  are  transitory,  and  governed 
by  the  lex  /ori.— Leonard  v.  Columbia  Steam  Nav. 
Co.,  265. 

That  action  is  without  precedent,  although  a 
strong  objection,  is  without  weight  where  adop- 
tion of  new  remedy  is  necessary  to  prevent  a  fail- 
ure of  justice,  or  to  enforce  settled  principles  of 
law.— Lamb  v.  Stone,  9 ;  Rice  v.  Coolidge,  13,  15. 


WTiere  performance  of  right  or  duty  created 
by  law  is  assumed  by  contract,  action  for  breach 
may  be  either  tx  contractu  or  ex  delicto. — Balti- 
more City  Pass.  Ry.  Co.  v.  Kemp,  54. 

Action  of  trespass  vi  et  armis  lies  if  the  dam- 
age complained  of  is  the  immediate  effect  of 
the  act  of  the  defendant;  if  consequential  only, 
and  not  immediate,  case  is  the  proper  remedy. — 
Brown  v.  Kendall,  52. 

Distinction  between  action  of  trespass  and  ac- 
tion on  the  case  not  material  on  review  of  judg- 
ment on  the  merits  where  declaration,  in  action 
brought  before  justice  of  the  peace,  is  ambiguous 
as  to  form  of  action. — Vandenburgh  v.  Truax,  38. 

Failure  of  plaintiff  to  have  writ  returned,  or  to 
appear  at  the  court  to  which  it  is  returnable,  a  final 
determination  of  the  action. — Cardival  v.  Smith, 
102. 

ADJOINING  LAND-OWNERS. 

Owner  of  land  may  improve  it  in  his  own  way, 
if  he  violates  no  duty  to  any  adjacent  owner,  or  to 
the  public. — Gramlich  v.  Wurst,  7. 

One  adjoining  land-owner  liable  for  injury  to 
soil  of  another,  by  removal  of  lateral  support  there- 
from; but  not  for  injury  to  house  built  thereon, 
where  no  prescriptive  right  exists. — Thurston  v. 
Hancock,  23. 

Not  liable  for  opening  wells  on  his  own  land  and 
drawing  water  therefrom,  although  supply  of  wa- 
ter to  wells  on  another's  land  is  diminished  there- 
by.— Ocean  Grove  Camp  Meeting  Ass'n  v.  Com- 
missioners of  Asbury  Park,  26. 

Not  liable  for  opening  wells  on  his  own  land,  al- 
though subsidence  of  surface  of  land  of  another  is 
caused  thereby,  if  this  occasions  no  appreciable 
damage. — Smith  v.  Thackerah,  30. 

Not  liable  for  obstruction  of  access  of  light  or 
air  to  adjacent  land,  unless  adverse  right  thereto 
has  been  acquired. — Guest  v.  Reynolds,  1. 

One  of  two  adjoining  proprietors  upon  whose 
land  cattle  stray  from  the  highway,  from  which 
they  pass,  through  a  defect  in  that  portion  of  the 
division  fence  which  he  was  bylaw  bound  to  keep 
in  repair,  upon  the  land  of  the  other,  is  not  liable 
to  the  latter  in  trespass  therefor,  although  he 
would  be  liable  for  such  trespass  by  cattle  right- 
fully on  his  land. — Lawrence  v.  Combs,  163. 

Adverse  Possession. 

See  Prescription. 

ADVERSE  RIGHTS. 

To  easement  of  light  and  air  not  acquired  by  pre- 
scription.—Guest  v.  Reynolds,  3;  Miller  v.  Wood- 
head,  4. 

AEFRAY. 

Right  of  recovery  for  injuries  received  in  affray 
not  affected  by  consent  of  combatants  to  fight  to- 
gether.—Engelhardt  v.  State,  73;  Barholt  v. 
Wright,  74. 

Oificer  may  arrest,  without  a  warrant,  persons 
engaged  in  affray,  while  it  is  going  on,  but  not  aft- 
er it  is  over,  unless  there  is  danger  of  its  immedi- 
ate renewal.— Quinn  v.  Heisel,  96;  Phillips  v.  Trull, 
97. 

A  private  person  may  arrest,  without  a  warrant, 
persons  engaged  in  affray,  while  it  is  going  on,  but 
not  after  it  is  ended.— Phillips  v.  Trull,  97. 

Agency. 

See  Principal  and  Agent. 

Agreements. 

See  Contracts. 

ANCIENT  LIGHTS. 

English  doctrine  not  applicable  in  Illinois.— 
Guest  v.  Reynolds,  3 ;  Miller  v.  Woodhead,  4. 


INDEX. 


271 


ANIMALS, 

Owner  of  domestic  animals  liable  for  injuries 
committed  by  them  while  trespassing  on  the  close 
of  another,  irrespective  of  his  knowledge  of  their 
vicious  propensities;  but  not  liable  for  injuries  by 
them  unless  they  were  trespassing,  or  he  had 
knowledge  of  their  vicious  propensities. — Van 
Leuveu  v.  Lyke,  152 ;  Marshall  v.  Welwood,  223. 

One  of  two  adjoining  proprietors  upon  whose 
land  cattle  stray  from  the  highway,  from  which 
they  pass,  through  a  defect  in  that  portion  of  the 
division  fence  which  he  was  by  law  bound  to  keep 
in  repair,  upon  the  land  of  the  other,  is  not  liable 
to  the  latter  in  trespass  therefor;  although  he 
would  be  liable  for  such  trespass  by  cattle  right- 
fully on  his  land. — Lawrence  v.  Combs,  103. 

The  owner  of  an  ox  which,  while  being  driven 
along  the  highway,  escapes  and  enters  premises 
of  another  adjoining  the  highwaj',  is  not  liable  for 
the  damages  thereby  done,  un'ess  there  was  negli- 
gence on  his  part. — Tillett  v.  Ward,  162. 

Owner  of  cattle  is  bound  to  prevent  them  from 
escaping  from  his  land  and  doing  mischief;  but, 
with  regard  to  tame  beasts  having  no  exception- 
ally vicious  disposition  so  far  as  known,  the  owner 
is  not  liable  for  the  hurt  they  may  inflict  upon  the 
persofs  of  others. — Marshall  v.  Welwood,  221. 

One  keeping  a  mischievous  or  vicious  animal, 
with  knowledge  of  its  propensities,  is  bound  to 
keep  it  secure  at  his  peril;  he  cannot  excuse  him- 
self from  liability  for  injuries  inflicted  by  it  by 
proof  of  due  care. — Muller  v.  McKesson,  191. 

The  negligence  of  a  servant  in  loosing  his  mas- 
ter's ferocious  dog  is  no  defense  to  an  action  for 
the  injury  caused  b}'  the  dog  to  a  fellow -servant, 
as  the  grnvamcn  of  the  action  is  the  keepingr  of  a 
ferocious  animal  with  knowledge  of  its  nature, 
and  not  the  negligent  care  of  it.— Muller  v.  McKes- 
son, 191. 

A  person  in  the  employ  of  another,  charged  with 
specific  duties,  does  not,  while  in  the  performance 
of  such  duties,  assume  the  risk  of  injury  from  a  vi- 
cious animal  kept  by  the  employer,  which  he  is  in- 
formed will  be  kept  fastened. — Mnller  v.  McKes- 
son, 191. 

The  negligence  ot  the  owner  of  an  animal  in 
leaving  it  fettered  in  the  highway  does  not  pre- 
clude his  maintaining  an  action  for  the  killing  of 
the  animal  occasioned  by  the  negligent  act  of  the 
driver  of  a  wagon  in  running  into  it,  if  the  driver's 
negligence  was  the  proximate  cause  of  the  injury, 
and  if  he  might  have  avoided  it  by  exercise  of  or- 
dinary care. — Davies  v.  Mann,  225. 

The  sale  of  animals  which  the  seller  knows,  but 
the  purchaser  does  not,  have  a  contagious  disease, 
is  to  be  regarded  as  a  fraud,  if  the  fact  of  the  dis- 
ease is  not  disclosed.— Grigsby  v.  Stapleton,  258. 

APPEAL. 

Where  interest,  not  given  by  the  verdict,  is  in- 
serted in  the  judgment,  without  authoritj-,  the 
proper  remedy  is  bj'  motion  to  correct  the  judg- 
ment, and  not  by  appeal. — Leonard  v.  Columbia 
Steam  Nav.  Co.,  265. 

In  an  action  for  damages  caused  by  neglect  to 
provide  fire-escapes  for  a  tenement-house,  as  re- 
quired bv  statute,  the  admission  in  evidence  of  a 
copy  of  the  specifications  adopted  by  commissioners 
under  the  statute,  as  to  the  material  and  manner 
of  constructing  the  fire-escape,  being  wholh'  im- 
material and  harmless,  is  not  ground  for  reversal. 
—Willy  V.  MuUedy,  17. 

APPORTIONMENT. 

No  apportionment  of  damages  between  joint 
tort-feasors. — Keegan  v.  Hayden,  68. 

ARREST. 

Of  person  who  has  committed  a  felony,  justifi- 
able without  a  warrant. — HoUey  v.  Mix,  93;  Carl 
V.  Ayers,  94. 

For  oreacn  of  the  peace,  while  it  continues,  jus- 
tifiable without  wan-ant.— Quinn  v.  Heisel,  96; 
Phillips  V.  Trull.  97. 


By  officer,  without  warrant,  on  charge  of  felony, 
justifiable,  though  no  felony  committed,  if  made 
upon  reasonable  grounds  of  suspicion.— HoUey  v. 
Mix,  93. 

By  officer,  without  a  warrant,  for  a  past  offense, 
not  a  felony,  is  not  justified  by  information  or 
suspicion.— Quinn  v.  Heisel,  96. 

By  officer,  without  warrant,  is  not  justified  by  a 
threat  or  other  indication  of  a  breach  of  the  peace, 
unless  the  facts  warrant  a  belief  that  the  arrest  is 
necessary  to  prevent  the  commission  of  the  of- 
fense, without  reference  to  any  past  similar  of- 
fense of  which  the  person  may  have  been  guilty 
before  the  officer's  arrival.— Quinn  v.  Heisel,  98. 

By  private  person,  without  warrant,  for  felony, 
where  no  felony  committed,  is  illegal. — Holley  v. 
Mix,  93. 

By  private  person,  on  charge  of  felony,  justifia- 
ble, if  such  felony  was  in  fact  committed,  and 
there  is  reasonable  ground  to  suspect  the  person 
arrested. — Holley  v.  Mix.  93 ;  Carl  v.  Ayers,  94. 

Warrant  regular  on  its  face,  sufficient  authority 
to  a  constable  to  make  the  arrest  commanded 
therein,  although  he  has  knowledge  of  facts  which 
render  the  warrant  void  for  want  of  jurisdiction, 
— People  v.  Warren,  216. 

Arrest  under  warrant  void  on  its  face,  ground 
for  action  for  false  imprisonment. — Gelzenleuchter 
V.  Niemeyer,  88. 

Action  maintainable  for  arrest  which  is  a  ma- 
licious abuse  of  process. — Grainger  v.  Hill,  107. 

Arrest  may  be  made  without  actually  touching 
the  person. — Grainger  v.  Hill,  107. 

ASSAITLT  AND  BATTERY. 

Riding  after  a  person,  so  as  to  compel  him  to  run 
to  shelter  to  avoid  being  beaten,  is,  in  law,  an  as- 
sault.— Mortin  v.  Shoppee,  71. 

Advancing  in  a  threatening  attitude  and  with 
intent  to  strike  another,  so  that  the  blow  would 
almost  immediately  reach  him,  is,  in  law,  an  as- 
sault by  the  person  advancing  with  such  intent, 
although  he  is  stopped  before  he  is  near  enough 
to  the  other  to  strike  him. — Stephens  v.  Myers,  71. 

Raising  a  stick,  within  striking  distance  of  an- 
other, as  if  to  strike  him,  although  that  is  pre- 
vented by  the  other  wrenching  the  stick  from  the 
assailant,  constitutes  a  criminal  assault. — Engel- 
hardt  v.  State,  73. 

Aiming  and  firing  a  loaded  pistol  in  the  direc- 
tion of  another  constitutes  a  criminal  assault. — 
Engelhardt  v.  State,  73. 

Pointina:  an  unloaded  gun  at  one  who  supposes  it 
to  be  loaded,  although  within  the  distance  it  would 
carry  if  loaded,  is  not,  without  more,  an  assault 
punishable  criminally,  although  it  may  sustain  a 
civil  action  for  damages. — Chapman  v.  State,  70. 

To  touch  another  in  anger,  though  in  the  slight- 
est degree,  or  under  pretense  of  passing,  is,  in 
law,  a  battery. — Cole  v.  Turner,  72. 

Laying  hold  of  another's  person  in  a  rude  and 
hostile  manner  is  a  battery, — Engelhardt  v.  Stare, 
73. 

Action  maintainable  for  assault  and  battery  by 
negligence  without  wrongful  intent. — Weaver  v. 
Ward,  49. 

Action  maintainable  for  assault  and  battery  by 
explosion  of  lighted  squib  first  thrown  by  defend- 
ant, although  plaintiff  would  not  have  "been  in- 
jured without  intervention  of  others. — Clark  v. 
Chambers,  33;  Vandenburgh  v.  Truax,  37;  Morain 
V.  Devlin,  5U. 

Action  not  maintainable  for  injury  from  a  blow 
which  was  the  result  of  pure  accident,  or  was  in- 
voluntary and  unavoidable. — Brown'  v.  Kendall, 
51. 

To  constitute  a  criminal  assault  there  must  be  a 
present  purpose  to  do  injury. — State  v.  Crow,  73. 

Words  accompanying  menacing  acts  and  indicat- 
ing that  there  is  no  intent  to  do  actual  violence 
may  be  considered  on  the  question  whether  such 
acts  constitute  an  assault. — Stale  v.  Crow,  72. 

Where  two  combatants  fight  together  willingly, 
neither  in  self-defense,  each  is  guilty  of  an  assault 
and  battery  on  the  other. — Engelhardt  v.  State,  73. 

No  defense  to  action  for  assault  and  battery 
that  the  acts  complained  of  were  committed  in  » 


272 


j'NDEX. 


fight  engaged  in  by  mutual  consent,  although  such 
consent  mav  be  shown  in  mitigation  of  damages. 
— Barholt  v"  Wright,  74. 

Assault  in  defense  of  property  justifiable,  unless 
unreasonable  force  is  used.— Scribner  v.  Beach, 
75;  Commonwealth  v.  Donahue,  77;  Newkirk  v. 
Sabler,  151. 

Assault  by  servant  of  carrier  in  expelling  pas- 
senger for  wanton  violation  of  reasonable  regula- 
tion justifiable,  unless  more  force  is  used  than 
necessary  for  the  purpose,  or  a  dangerous  or  in- 
convenient place  is  selected  for  such  expulsion. — 
Illinois  Cent.  R.  Co.  v.  Whittemore,  79. 

Assault  by  officer  in  overcoming  unlawful  resist- 
ance to  service  of  process  justifiable,  unless  excess 
of  force  is  used  by  him. — Hager  v.  Danforth,  81. 

Corporal  punishment  of  pupil  by  teacher  to  en- 
force compliance  with  proper  rules  for  good  con- 
duct and  order  of  school  justifiable,  if  inflicted 
with  sound  discretion  and  judgment,  and  adapted 
to  the  offehder  as  well  as  the  offense.— Sheehan  v. 
Sturges,  80. 

ATTACHMENT. 

Action  maintainable  for  malicious  prosecution 
of  civil  action  by  attachment  against  property  of 
the  defendant  therein. — Bump  v.  Betts,  107. 

Where  a  proceeding  by  attachment  against  prop- 
erty is  brought  in  the  absence  of  the  defendant 
therein,  and  he  has  no  opportunity  to  defend,  he 
need  not  show  a  termination  of  the  proceeding  in 
his  favor  in  order  to  maintain  an  action  for  mali- 
cious prosecution  therefor.  —Bump  v.  Betts,  107. 

Fraudulent  purchase  of  debtor's  goods  to  pre- 
vent attachment  not  ground  of  action  by  creditor 
for  damages  for  fraud. — Lamb  v.  Stone,  8. 

Purchaser  from  attachment  debtor,  of  goods  at- 
tached in  his  hands,  entitled  to  equitable  set-off 
for  advances  made  to  or  debts  paid  for  principal 
debtor  in  good  faith. — Lamb  v.  Stone,  10. 


ATTORNEYS. 

Court  of  general  criminal  jurisdiction  has  power 
to  strike  from  the  roll  of  attorne3^s  practicing  in 
the  court  the  name  of  an  attorney  guilty  of  mis- 
conduct which  is  ground  for  such  an  order. — Brad- 
ley V.  Fisher,  206. 

Misconduct  by  an  attorney  in  threatening  a 
judge  pi'esiding  at  a  trial,  as  he  was  descending 
from  the  bench,  with  personal  chastisement  for  his 
alleged  conduct  during  the  trial,  is  ground  for 
striking  the  name  of  such  attorney  from  the  roll 
of  attorneys  practicing  in  the  court. — Bradley  v. 
Fisher,  206. 

Where  a  court  has  power  to  make  an  order 
striking  the  name  of  an  attorney  from  the  roll  of 
attorneys  practicing  in  the  court,  error  in  not  cit- 
ing the  attorney,  before  making  such  an  order,  to 
show  cause  why  it  should  not  be  made,  however 
it  may  affect  the  validity  of  the  act,  does  not  make 
it  any  the  less  a  judicial  act,  nor  does  it  render  the 
judge  making  the  order  liable  in  damages  to  the 
attorney,  as  though  the  court  had  proceeded  with- 
out jurisdiction. — Bradley  v.  Fisher,  206. 

An  attorney  causing  issue  of  void  or  irregular 
process  is  liable  for  loss  or  injury  thereby  occa- 
sioned to  parlies  against  whom  it  is  enforced. — 
Fischer  v.  Langbein,  90. 

Attorneys  for  defendants  in  an  action,  who  op- 
pose a  motion  by  plaintiff"  therein  for  his  discharge 
from  imprisonment  under  a  commitment  for  con- 
tempt, he  alleging  that  he  has  complied  with  the 
terms  of  the  commitment,  are  not  thereby  ren- 
dered liable  to  an  action  by  him  for  false  impris- 
onment because  of  his  alleged  false  imprisonment 
thereafter. — Fischer  v.  Langbein,  90. 

One  who,  in  instituting  an  alleged  malicious 
prosecution,  submitted  all  the  facts  of  the  case 
which  he  knew  were  capable  of  proof  fairly  to  his 
counsel,  and  acted  bona  fide  on  the  advice  given, 
is  not  liable  to  an  action  therefor,  even  though  the 
facts  did  not  warrant  the  advice  and  the  prosecu- 
tion.— Walter  v.  Sample,  101. 


BAILMENT. 

Bailee  of  a  chattel,  who  fails  to  restore  it  to  the 
rightful  owner,  but  delivers  it  to  another  not  en- 
titled to  receive  it,  though  under  an  honest  mis- 
take of  fact,  liable  in  trover  for  its  conversion, — 
Esmay  v.  Panning,  203. 

Rule  of  civil  law  allowing  bailee  to  restore  prop- 
erty to  place  from  which  he  took  it,  in  case  no 
place  for  such  delivery  was  agreed  on,  not  adopt^ 
ed. — Esmay  v.  Fanning,  204. 

Bailee  of  a  chattel,  having  received  it  in  good 
faith  from  a  person  other  than  the  owner,  not  lia- 
ble for  conversion  by  refusing  to  deliver  it  to  the 
owner  on  demand,  until  he  has  had  time  to  satisfy 
himself  as  to  the  ownership. — Singer  Manuf'g  Co. 
v.  King,  205. 

One  who  hires  a  horse  to  drive  to  a  particular 
place,  and  drives  beyond  the  place  or  in  another 
direction,  is  liable  for  a  conversion. — Freeman  v. 
Boland,  300. 

See  Landlord  and  Te7iant;  Loans;  Warehouse- 
men. 

BALLOON. 

Action  maintainable  for  injuries  to  property 
from  the  descent  thereon  of  a  balloon  in  which  de- 
fendant had  ascended,  including  damage  done  by 
third  persons  coming  to  defendant's  assistance. — 
Guille  V.  Swan,  49. 

Battery. 

See  Assault  and  Battery. 
BELLS. 

Ringing  the  bell  of  a  church,  built  upon  a  public 
street  in  a  thickly-settled  part  of  a  town,  in  such 
manner  as  to  materially  affect  the  health  or  com- 
fort of  all  in  the  vicinity,  whether  residing  or  pass 
ing  there,  constitutes  a  public  nuisance. — Rogers  v. 
Elliott,  177. 

But  one  who,  by  reason  of  a  sunstroke,  is  pecul- 
iarly susceptible  to  the  noise  caused  by  the  ring- 
ing of  a  chui'ch  bell,  situated  directly  opposite  his 
house  in  a  thickly-populated  district,  cannot,  in 
the  absence  of  evidence  of  express  malice,  or  that 
the  bell  was  objectionable  to  persons  of  ordinary 
health  and  strength,  maintain  an  action  against  the 
custodian  of  such  church  for  sufferings  caused  by 
the  ringing  of  such  bell. — Rogers  v.  Elliott,  17(5. 

Use  of  bells  by  employers  for  purpose  of  giving 
notice  to  their  workmen,  although  such  as  to  cause 
injury  to  individuals  which  a  court  of  equity  would 
restrain,  may  be  authorized  by  legislature,  subject 
to  regulation  by  municipal  authorities. — Sawyer 
v.  Davis,  186. 

BLASTING. 

Blasting  rocks  with  gunpowder  so  that  the  frag- 
ments are  liable  to  injui'e  adjoining  dwelling- 
houses,  or  persons  living  or  traveling  there,  con- 
stitutes a  nuisance. — Heeg  v.  Licht,  178. 

BREACH  OF  THE  PEACE. 

Self-defense  an  excuse. — Scribner  v.  Beach,  76. 
_  Arrest   for  breach  of  the  peace,  while  it  con- 
tinues,   justifiable    without    warrant. — Quinn    v. 
Heisel,  96;  Phillips  v.  Trull,  97. 

BRICK-KILNS. 

Burning  brick  in  a  kiln,  which  produces  noxious 
gases,  injuring  another's  property,  is  a  nuisance, 
though  brick-burning  is  a  useful  and  necessary  in 
dustry. — Campbell  v.  Seaman,  164. 

Where  the  injury  to  shrubbery  on  plaintiff's 
premises  is  caused  by  the  burning  of  anthracite 
coal  in  a  brick-kiln  on  adjoining  premises  by  de- 
fendant, a  prescriptive  right  to  continue  the  uui 


INDEX. 


273 


sance  must  be  bapod  upon  20  years'  actual  use  of 
such  coal,  and  not  20  years'  use  of  the  kiln. — 
Campbell  v.  Seaman,  164. 

BROKERS. 

Broker  having  right  to  sell  and  deliver  property 
not  liable  for  conversion  in  selling  at  a  price  less 
than  that  fixed  by  his  instructions. — Laverty  v. 
Snethen,  197. 


BURDEN  OF  PROOF. 

In  an  action  for  a  personal  injury  to  plaintiff  by 
a  blow  inflicted  unintentionally  by  defendant 
while  doing  a  lawful  act.  the  burden  is  on  plain- 
tiff to  show  that  defendant  is  chargeable  with 
some  fault,  negligence,  carelessness,  or  want  of 
prudence. — Brown  v.  Kendall,  o'6. 


CARRIERS. 

Rule  requiring  railway  passengers  to  surrender 
their  tickets  on  the  trains,  a  reasonable  regula- 
tion.— Illinois  Cent.  R.  Co.  v.  Whittemore,  79; 
Lynch  v.  Metropolitan  El.  Ry.  Co.,  S6. 

Railroad  company  may  expel  passenger  from 
train  for  wanton  refusal  to  comply  with  rule  re- 
quiring surrender  of  tickets  on  the  train,  using  no 
more  force  than  necessary  for  the  purpose,  and 
not  selecting  a  dangerous  or  inconvenient  place. 
^Illinois  Cent.  R.  Co.  v.  Whittemore,  79;  Lynch 
V.  Metropolitan  El.  Ry.  Co.,  87. 

Statute  forbidding  railroad  companies  to  expel 
passengers  from  trains  for  non-payment  of  fare, 
at  any  place  other  than  a  regular  station,  does  not 
apply  to  a  refusal  by  a  passenger  to  surrender  his 
ticket,  as  required  by  a  rule  of  the  company. — Illi- 
nois Cent.  R.  Co.  v.  Whittemore,  79. 

Regulation  by  a  railroad  company  that  a  passen- 
ger, who  fails,  before  leaving  its  trains  or  prem- 
ises, to  produce  a  ticket  or  pay  his  fare,  shall  be 
detained  until  he  does  so,  is  illegal. — Lynch  v. 
Meti-opolitan  El.  Ry.  Co.,  86. 

Carrier  has  a  lien  for  fare  on  baggage  of  passen- 
ger, but  not  on  his  person. — Lynch  v.  Metropolitan 
El.  Ry.  Co.,  87. 

Common  carrier  of  passengers  owes  to  a  passen- 
ger a  duty  to  be  careful,  iri-espective  of  contract. 
— Baltimore  City  Pass.  Ry.  Co.  v.  Kemp,  54. 

Negligence  of  person  in  charge  of  a  public  con- 
veyance cannot  be  imputed  to  a  passenger  therein, 
wlio  is  injured  by  the  joint  negligence  of  such  per- 
sons and  those  in  charge  of  another  conveyance, 
to  defeat  his  action  against  the  latter. — Mills  v. 
Armstrong,  (The  Bernina,)  233. 


CELLAR-DOORS. 

Action  maintainable  for  personal  injuries  caused 
by  fall  of  flap  of  cellar-door,  left  raised  and  un- 
fastened by  negligence  on  part  of  defendant,  al- 
though its  fall  was  caused  by  intervening  act  of 
third  person. — Clark  v.  Chambers,  34. 

CERTIORARI. 

Writ  lies,  at  common  law,  only  to  oflBcers  exer- 
cising judicial  powers,  and  to  remove  proceedings 
of  a  judicial  character. — Weaver  v.  Devendorf ,  211. 


Sea  Infancy. 


Children. 


CIPHER. 


That  a  libelous  statement  by  a  mercantile  agency 
to  its  subscribers  was  in  cipher,  understood  by  the 
subscribers  only,  is  not  a  defense  to  an  action  for 
libel.— Sunderlin  v.  Bradstreet,  143. 
CHASE — 18 


CIVIL  LAW. 

Rule  as  to  right  of  drainage  of  surface  waters, 
as  between  owners  of  adjacent  lands,  of  different 
elevations,  governed  by  the  law  of  nature ;  but  is 
not  adopted  in  all  the  states. — Barkley  v.  Wilcox, 
171. 

Rule  allowing  bailee  to  restore  property  to  place 
from  which  he  took  it,  in  case  no  place  for  such 
delivery  was  agreed  on,  not  adopted. — Esmay  v. 
Fanning,  204. 

COLLOQUIUM. 

In  an  action  for  slander  in  speaking  words  which 
are  slanderous  only  by  reference  to  facts  and  cir- 
cumstances set  forth  in  plaintiff's  declaration,  the 
culhxiniiini.  or  averment  that  the  words  were 
spoken  of  and  concerning  such  circumstances, 
must  extend  to  the  whole  of  the  prefatory  induce- 
ment necessary  to  render  the  words  actionable. 
An  omission  in  this  respect  cannot  be  aided  by 
mere  innuendoes,  nor  by  averments  that  defendant 
had  knowledge  of  the  particular  circumstances 
stated. — Bretlun  v.  Anthony,  147. 

COMMON  LAW. 

Legal  rights  may  be  established  by  common  law, 
in  cases  of  novel  impression. — Western  Counties 
Manure  Co.  v.  Lawes  Chemical  Manure  Co.,  11; 
Rice  V.  Coolidge,  13. 

Doctrine  as  to  easements  of  light  and  air  not 
adopted  in  Illinois. — Guest  v.  Reynolds,  3;  Miller 
V.  W'oodhead,  4. 

Rule  that  words  imputing  unchastity  to  a  wo- 
man are  not  actionable  unless  special  damage  be 
shown  has  been  changed  by  statute  in  many  of  the 
United  States. — Roberts  v.  Roberts,  28, 30,  note. 

Common  law  presumed  to  prevail  in  a  state  the 
law  of  which  is  not  proved. — Leonard  v.  Columbia 
Steam  Nav.  Co.,  260. 

CONCEALMENT. 

On  a  sale  of  an  article  for  a  particular  purpose, 
the  suppression  by  the  vendor  of  a  latent  defect 
which  makes  the  article  unfit  for  such  purpose  is 
a  deceit. — Grigsby  v.  Stapleton,  259. 

One  who  sells  cattle,  which  he  knows  have  a  con- 
tagious disease,  not  easily  detected  except  by  those 
acquainted  with  it,  for  a  sound  price,  to  a  pur- 
chaser having  no  knowledge  of  the  fact,  if  he  does 
not  disclose  the  fact  to  the  purchaser,  is  guilty  of 
fraudulent  concealment  of  a  latent  defect,  which 
will  defeat  an  action  for  the  price;  under  such  cir- 
cumstances, the  rule  caveat  emptor  does  not  ap- 
ply.— Grigsby  v.  Stapleton,  258. 

CONFIDENTIAL    COMMUNICA- 
TIONS. 

Confidential  advice  or  communication  to  persons 
asking  therefor,  or  having  a  right  to  expect  it,  not 
ground  for  action  of  slander  or  libel  unless  malice 
in  fact  be  shown. — Bromage  v.  Prosser,  129. 

Defamatory  words  are  not  privileged  because 
uttered  in  strictest  confidence  by  one  friend  to  an- 
other; nor  because  they  are  uttered  after  the  most 
urgent  solicitation ;  nor  because  the  interview  in 
which  they  are  uttei'ed  is  obtained  at  the  instance 
of  the  person  slandered. — Byam  v.  Collins,  139. 

That  a  libelous  statement  by  a  mercantile  agen- 
cy to  its  subscribers  was  in  cipher,  understood  by 
the  subscribers  only,  is  not  a  defense  to  an  action 
for  libel. — Sunderlin  v.  Bradstreet,  142. 


CONFLICT  OF  LAWS. 

Personal  actions  are  transitory,  and  governed  by 
the  lex  fori. — Leonard  v.  Columbia  Steam  Nav. 
Co.,  26.5. 

Statutes  of  one  state  can  have  no  operation  in 
another  where  similar  statutes  do  not  exist;  but 


274 


INDEX. 


a  right  of  action  given  by  a  statute  of  one  state 
may  be  enforced  in  the  courts  of  another  state  hav- 
ing a  substantially  similar  statute,  as  if  such  right 
of  action  existed  by  the  common  law  of  both  states. 
— Leonard  v.  Columbia  Steam  Nav.  Co.,  265. 

CONSENT. 

Not  a  justification  for  an  assault,  but  merely 
ground  of  mitigation  of  damages. — Barholt  v. 
Wright,  74. 

CONSORTIUM. 

Loss  of  consorthim  vicinnrjirn  not  such  special 
damage  as  will  sustain  action  for  slander  in  speak- 
ing words  not  actionable  in  themselves. — Roberts 
V.  Roberts,  29. 

An  action  may  be  maintained  by  a  husband  for 
the  loss  of  consorthim  with  his  wife  which  is  im- 
plied from  criminal  conversation  of  the  defendant 
with  her,  whether  defendant's  act  was  with  or 
against  her  will,  and  although  it  may  have  caused 
no  actual  loss  of  her  services  to  her  husband. — 
Bigaouette  v.  Paulet,  216. 

CONSPIRACY. 

Where  the  acts  charged  against  several  defend- 
ants would  not  be  actionable,  if  done  by  one  alone, 
they  are  not  made  actionable  by  being  done  by 
several  in  pursuance  of  a  conspiracy. — Rice  v. 
Coolidge,  14. 

Action  maintainable  for  a  combination  or  con- 
spiracy, by  fraudulent  and  malicious  acts,  to  drive 
a  trader  out  of  business,  resulting  in  damages. — 
Van  Horn  v.  Van  Horn,  109. 

The  gravamen  in  such  an  action  is  not  the  con- 
spiracy, but  the  malice ;  the  conspiracy  is  matter 
of  aggravation  or  inducement  only,  in  the  pleading 
and  evidence,  under  which  one  or  all  of  the  defend- 
ants may  be  found  guilty.— Van  Horn  v.  Van 
Horn,  109. 


Constables. 


See  Officers. 


CONSTITUTIONAL  LAW. 

An  act  of  the  legislature,  which  directs  or  allows 
that  to  be  done  which  would  otherwise  be  a  nui- 
sance, is  valid,  unless  it  can  fairly  be  said  to  be  an 
unwholesome  and  unreasonable  law. — Sawyer  v. 
Davis,  186. 

An  injunction  restraining  the  ringing  of  a  fac- 
tory bell,  used  to  notify  employes,  before  a  certain 
hour  in  the  morning,  does  not  give  a  vested  right 
which  the  legislature  is  powerless  to  take  away  by 
a  statute  legalizing  the  ringing  of  such  bell  before 
that  hour,  and  on  a  bill  of  review  in  such  case  the 
injunction  will  be  dissolved. — Sawyer  v.  Davis, 
186. 

CONTAGIOUS  DISEASES. 

Words  imputing  are  actionable. — Golderman  v. 
Stearns,  116. 

The  sale  of  animals  which  the  seller  knows,  but 
the  purchaser  does  not,  have  a  contagious  disease, 
is  to  be  regarded  as  a  fraud,  if  the  disease  is  la- 
tent, and  is  not  disclosed  by  the  vendor.— Grigsby 
V.  Stapleton,  258. 

CONTEMPT. 

Misconduct  by  an  attorney  in  threatening  a  judge 
presiding  at  a  trial,  as  he  was  descending  from  the 
bench,  with  personal  chastisement  for  his  alleged 
conduct  during  the  trial,  is  ground  for  striking  the 
name  of  such  attorney  from  the  roll  of  attorneys 
practicing  in  the  court.— Bradley  v.  Fisher,  206. 

Error  of  law  in  adjudging  a  party  guilty  of  con- 
tempt and  ordering  him  to  be  committed  therefor, 
he  having  disobeyed  an  order  of  the  court,  and  the 
only  question  being  whether  his  disobedience  de- 


feated, impaired,  impeded,  or  prejudiced  any  right 
or  remedy  of  the  defendants,  does  not  affect  the 
jurisdiction  of  the  court,  nor  render  the  commit- 
ment void;  and  such  party  cannot  maintain  an  ac- 
tion for  false  imprisonment  for  his  arrest  and  im- 
prisonment under  the  commitment. — Fischer  v. 
Langbein,  90. 

CONTRACTS. 

Omission  to  perform  a  contract  obligation,  if  also 
an  omission  of  a  legal  duty,  may  constitute  a  tort, 
even  where  such  legal  duty  arises  from  circum- 
stances not  elements  of  the  contract,  but  merely 
connected  with  it  and  dependent  upon  it. — Rich  v. 
New  York  Cent.  &  H.  R.  R.  Co.,  56. 

In  cases  of  contract,  where  there  is  no  legal  duty 
independent  of  the  contract,  one  not  in  privity 
with  a  party  to  the  contract  cannot  recover  against 
him  in  tort  for  an  injury  involving  a  breach  of  the 
contract. — Winterbottom  v.  Wright,  62. 

But  where,  in  cases  of  contract,  the  law  imposes 
a  duty  towards  third  persons  who  are  not  parties 
to  the  contract,  such  persons  may  recover  in  an 
action  of  tort. — Thomas  v.  Winchester,  65. 

Dealer  in  medicines  selling,  as  a  harmless  rem- 
edy, a  poison  of  similar  appearance,  liable  for  in- 
juries caused  thereby  to  a  patient  to  whom  it  was 
administered,  although  there  was  no  privity  be- 
tween them. — Thomas  v.  Winchester,  65. 

Duty  of  care  on  the  part  of  a  common  carrier  of 
passengers  towards  a  passenger  exists  irrespective 
of  contract,  and  its  violation  is  a  tort. — Baltimore 
City  Pass.  Ry.  Co.  v.  Kemp,  54. 

Action  not  maintainable  by  one  party  to  a  con- 
tract against  a  third  person  for  persuading  the 
other  party  to  the  contract  not  to  perform  it. — 
Mobile  Life  Ins.  Co.  v.  Brame,  24S. 

It  seems  that  one  who  procui'es  another  to  break 
a  contract  by  the  latter  with  a  third  party  is  re- 
sponsible for  the  breach  only  whei-e  malice  to  such 
third  person  is  shown,  giving  a  distinct  cause  of 
action  for  the  malice  which  caused  the  breach  of 
contract  resulting  in  damages  to  him. — V^an  Horn 
V.  Van  Horn,  110. 

CONTRIBUTION. 

No  contribution  between  joint  tort-feasors,  in  re- 
spect of  an  act  which  the  party  must  be  presumed 
to  have  known  to  be  unlawful. — Armstrong  Coun- 
ty V.  Clarion  County,  68. 


CONTRIBUTORY  NEGLIGENCE. 

Where  a  person's  own  negligence  or  want  of  or- 
dinary care  and  caution  so  far  contributes  to  an 
injury  to  himself  that  but  for  such  negligence  or 
want  of  ordinary  care  and  caution  on  his  own  part 
the  injury  would  not  have  happened,  he  cannot  re- 
cover therefor. — Baltimore  &  P.  R.  Co.  v.  Jones, 
223. 

Negligence  of  a  plaintiff  precludes  him  from  re- 
covering in  an  action  for  defendant's  negligence, 
where  he  could,  by  ordinary  care,  have  avoided 
the  consequences  of  defendant's  negligence. — 
Davies  v.  Mann,  225. 

Action  not  maintainable  for  injury  to  plaintiff 
from  a  blow  by  negligence  of  defendant,  if  plain- 
tiff was  also  chargeable  with  negligence  contribut- 
ing as  an  efficient  cause  to  the  injui—. — Brown  v. 
Kendall,  51. 

Owner  of  tenement-house  who  has  failed  to  pro- 
vide fire-escapes  therefor  as  required  by  statute 
is  not  relieved  from  liability  for  damage  thereby 
caused  to  a  tenant,  by  the  fact  that  the  tenant  had 
occupied  the  premises  for  a  few  days  previous  to 
the  fire  causing  the  damage. — Willy  v.  Mulledy,  16. 

Doctrine  does  not  apply  to  cases  of  commission 
of  intentional  wrong. — Barholt  v.  Wright,  74. 

A  child  of  such  tender  years  as  to  be  incapable 
of  exercising  judgment  and  discretion  cannot  be 
charged  with  contributory  negligence. — Twist  v. 
Winona  &  St.  P.  R.  Co.,  226. 

But  even  a  child  is  bound  to  use  such  reasonable 
care  as  one  of  his  age  and  mental  capacity  is  ca- 


INDEX. 


275 


pable  of  using;  and  his  failure  to  do  so  is  negli- 
gence.—Twist  V.  Winona  &  St.  P.  R.  Co.,  226. 

CONVERSION     OF    PERSONAL 
PROPERTY. 

Conversion  is  an  unauthorized  assumption  and 
exercise  of  the  right  of  ownership  over  goods  be- 
longing to  another,  to  the  exclusion  of  the  owner's 
rights.— Laverty  v.  Snethen,  197. 

To  constitute  a  conversion,  there  must  be  acts 
amounting  to  a  repudiation  of  the  owner's  right 
in  the  property,  or  an  exercise  of  ownership  over 
it  inconsistent  with  such  right,  or  some  act  done 
which  destroys  or  changes  the  quality  of  the 
property. — Frome  v.  Dennis,  199. 

Refusal,  by  one  who  has  the  chattel  of  another, 
to  deliver  it  to  the  owner  or  his  agent  on  demand, 
is  evidence  of  conversion. — Singer  Manuf'g  Co.  v. 
Rice,  20.5. 

The  gist  of  the  action  of  trover  is  the  conversion 
and  deprivation  of  plaintiff's  property;  not  the  ac- 
quisition of  property  by  defendant. — Esmay  v. 
Fanning,  204. 

Bailee  of  chattel  who  fails  to  restore  it  to  the 
rightful  owner,  but  delivers  it  to  another  not  enti- 
tled to  receive  it,  though  under  an  honest  mistake 
of  fact,  liable  in  trover  for  its  conversion. — Esmay 
V.  F'anning,  203. 

Borrower  of  a  carriage  who,  having  received  it 
from  a  livery  stable  where  it  was  stored  for  the 
lender,  returns  it  to  such  livery  stable  after  the 
keeper  of  the  stable  has  ceased  to  be  the  agent  of 
the  lender,  liable  to  the  latter  for  a  conversion. — 
Esmay  v.  Fanning,  203. 

Where  personal  property  comes  lawfully  into  ttie 
possession  of  a  person  other  than  the  owner,  a  de- 
mand is  necessary  before  trover  can  be  maintained 
for  its  conversion,  unless  such  person  has  commit- 
ted some  wrongful  act  in  connection  therewith 
which  amounts  to  an  actual  conversion. — Esmay  v. 
Fanning,  204. 

One  who,  having  no  knowledge  of  the  ownership 
of  property,  borrows  it  of  the  persons  having  pos- 
session thereof,  and,  after  using  it,  returns  it  again 
to  him,  supposing  him  to  be  the  owner,  not  liable 
for  a  conversion,  in  an  action  by  the  true  owner. — 
Frome  v.  Dennis,  199. 

Under  such  circumstances,  the  failure  of  the 
borrower  to  deliver  the  property  to  the  owner,  up- 
on demand  by  him  after  it  has  been  returned  to  the 
lendei',  is  not  evidence  of  a  conversion. — Frome  v. 
Dennis,  199. 

A  person,  though  an  infant,  who  hii-es  a  horse 
and  wagon  to  drive  to  a  particular  place,  and  drives 
beyond  such  place,  is  liable  for  a  conversion. — 
Freeman  v.  Boland,  200. 

An  agent  who  parts  with  the  property  of  his 
principal  in  away  or  for  a  purpose  not  authorized, 
is  liable  for  a  conversion ;  but  if  he  parts  with  it  in 
accordance  with  his  authority,  although  at  a  less 
price,  or  if  he  misapplies  the  avails,  or  takes  inad- 
equate for  sufficient  security,  he  is  not  liable  for  a 
conversion. — Laverty  v.  Snethen,  197. 

One  to  whom  a  promissory  note  is  delivered  by 
the  payee  to  be  negotiated,  with  instructions  not 
to  part  with  the  possession  of  it  without  receiving 
the  money,  and  who  delivers  the  note  to  a  third 
person  under  the  promise  of  the  latter  to  get  it  dis- 
counted and  return  the  proceeds,  is  liable  to  the 
payee,  as  for  a  conversion  of  the  note,  for  the  loss 
by  the  appropriation  of  the  proceeds  of  the  note  by 
such  third  person. — Lavertj'  v.  Snethen,  197. 

Bailee  of  chattel,  having  received  it  in  good  faith 
from  a  person  other  than  the  owner,  not  liable  for 
conversion  by  refusing  to  deliver  it  to  the  owner 
on  demand,  until  he  has  had  time  to  satisfy  him- 
self as  to  the  ownership. — Singer  Manuf'g  Co.  v. 
King,  205. 

Agent  who,  having  received  a  chattel  from  a  fel- 
low-employe with  directions  not  to  deliver  it  to  the 
owner  until  certain  storage  charges  are  paid,  re- 
fuses to  deliver  it  to  the  owner  on  demand  because 
the  latter  will  not  pay  such  charges,  neither  he 
nor  his  principal  having  any  right  to  impose  such 
a  condition,  is  liable  to  the  owner  for  a  conversion. 
—Singer  Manuf'g  Co.  v.  King,  205. 


Taking  the  property  of  another  without  his  con- 
sent, by  abuse  of  the  process  of  the  law,  is  of  it- 
self a  conversion,  without  a  demand  and  refusal. 
— Grainger  v.  Hill,  107. 

Conversion  of  personal  property  an  injury  to  the 
right  of  possession.— Armory  v.  Delamirie,  201; 
Gordon  v  Harper,  201. 

The  finder  of  an  article  has  such  a  property  there- 
in as  will  enable  him  to  keep  it  as  against  all  but 
the  rightful  owner,  and  he  may  maintain  trover 
for  its  conversion.— Armory  v.  Delamirie,  201. 

Trover  will  not  lie  unless  at  the  time  of  the  con- 
version the  possession  or  right  to  the  immediate 
possession  of  the  property  was  in  plaintiff. — Gor- 
don V.  Harper,  201. 

Owner  of  personal  property  leased  to  another 
cannot  maintain  trover  for  a  conversion  pending 
the  demise.— Gordon  v.  Harper,  201. 

Sale  and  delivery,  by  one  tenant  in  common  of 
personal  property,  of  the  entire  property  as  ex- 
clusively his  own,  is  a  conversion,  for  which  bis 
co-tenant  can  maintain  trover. — Weld  v.  Oliver, 
202. 

In  an  action  of  trover  for  the  removal  by  defend- 
ant from  a  jewel  of  precious  stones,  the  value  of 
which  is  not  known,  and  which  defendant  does  not 
produce,  the  strongest  presumption  is  against  him, 
and  the  measure  of  damages  is  the  value  of  the 
best  stones  that  would  fit  the  socket. — Armory  v. 
Delamirie,  201. 


CORPORATIONS. 

A  statement  by  directors  of  a  tramway  com- 
pany in  a  prospectus  issued  by  them  for  the  pur- 
pose of  obtaining  subscriptions  to  shares  in  the 
company,  that  by  their  charter  the  company  had 
the  right  to  use  steam  power  instead  of  horses, 
when  in  fact  the  compauy  had  such  right  only  if 
the  consent  of  the  board  of  trade  should  be  ob- 
tained, and  such  consent  was  afterwards  refused, 
is  not  ground  for  an  action  of  deceit  against  the 
directors  by  one  who  took  shares  in  the  company, 
relying  upon  such  false  representation,  if  the 
statement  was  made  by  the  directors  in  the  honest 
belief  that  it  was  true. — Derry  v.  Peek,  249. 

Co-Tenancy. 

See  Joint  Tenancy  and  Tenancy  in  Common. 


COUNTIES. 

Liability  for  injuries  from  breaking  down  of  a 
bridge  jointly  maintained  by  two  counties  not  the 
subjectof  contribution  between  them. — Armstrong 
County  V.  Clarion  County,  68. 


COURTS. 

Court  of  general  criminal  jurisdiction  has  power 
to  strike  from  the  roll  of  attorneys  practicing  in 
the  court  the  name  of  an  attorney  guilty  of  miscon- 
duct which  is  ground  for  such  an  order. — Bradley 
v.  Fisher,  206. 


CRIMINAL  CONVERSATION. 

Action  maintainable  by  husband  for  loss  of  con- 
sortiiun  with  his  wife  which  is  implied  from 
criminal  conversation  of  the  defendant  with  her, 
whether  defendant's  act  was  with  or  against  her 
will,  and  although  it  may  have  caused  no  actual 
loss  of  her  services  to  her  husband. — Bigaouetle  v. 
Paulet,  216. 

CRIMINAL  LAW. 

Wrongful  intent  necessary  to  constitute  crime. 
— Bessey  v.  OUiot,  49. 

Lunatic  not  liable  to  indictment  and  punish- 
ment.— Morain  v.  Devlin,  51. 


276 


INDEX. 


DAMAGES. 

Action  not  maintainable  for  act  not  in  itself  un- 
lawful, where  no  damage  is  sustained. — Roberts 
V.  Roberts,  2S;  Smith  v.  Thackerah,  30;  Upton  v. 
Vail,  31. 

An  entry  upon  land  of  another  without  his  per- 
mission, express  or  implied,  or  the  license  or 
authority  of  law,  constitutes  a  trespass,  for 
which  damages  are  recoverable,  though  merely 
nominal. — Hatch  v.  Donnell,  150;  Newkirk  v.  Sab- 
ler,  151. 

Owner  of  land  in  which  another  has  an  easement 
may  recover  from  the  latter  for  injury  wantonly 
and  unnecessarily  done  by  him  in  the  use  of  his 
privileges,  without  proof  of  any  particular  amount 
of  damages  sustained. — Dixon  v.  Clow,  IS. 

The  law  presumes  that  damages  result  from  the 
speaking  of  words  charging  a  physician  with 
gross  ignorance  and  unskillfulness  in  his  profes- 
sion.— Secor  V.  Harris,  119. 

Fraud  and  damage  together  constitute  a  cause  of 
action. — Upton  v.  Vail,  31;  Hickey  v.  Morrell,  262. 

Action  for  tort  not  maintainable  wbere  damages 
are  too  remote,  contingent,  or  indefinite. — Lamb  v. 
Stone,  9,  10;  Clark  v.  Chambers,  32;  Vandenburgh 
V.  Truax,  37;  Lowery  v.  Manhattan  Ry.  Co.,  38; 
Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  41 ;  Moody 
V.  Baker,  44 ;  Bowen  v.  Hall,  46. 

One  who  does  an  illegal  or  mischievous  act,  like- 
ly to  prove  injurious  to  others,  is  answerable  for 
the  consequences  directly  and  naturally  resulting 
therefrom,  although  he  did  not  intend  to  do  the 
particular  injury  which  followed. — Vandenburgh 
v.  Truax,  37. 

Cancer  of  the  breast,  if  found  to  be  the  result  of 
an  injury  to  plaintiff  caused  by  defendant's  negli- 
gence, may  be  considered  in  estimating  damages 
in  an  action  for  such  injury. — Baltimore  City  Pass. 
Ry.  Co.  V.  Kemp,  54. 

Act  causing  death  of  a  human  being,  though 
clearly  involving  pecuniary  loss,  not  ground  of  ac- 
tion for  damages  at  common  law. — Mobile  Life  Ins. 
Co.  V.  Brame,  247. 

Special  damages  need  not  be  alleged  in  order  to 
set  forth  a  cause  of  action  where  the  natural  and 
necessary  consequences  of  the  wrongful  acts 
charged  is  to  injure  plaintiff. — Rice  v.  Coolidge,  13. 

Action  maintainable  for  special  damage  caused 
by  untrue  statement  disparaging  quality  of  plain- 
tiff's goods,  made  without  lawful  occasion. — West- 
ern Counties  Manure  Co.  v.  Lawes  Chemical  Ma- 
nure Co.,  11. 

Although  one  who  has  entered  into  a  contract  to 
purchase  land  is  influenced  to  desire  to  withdraw 
therefrom  by  statements  as  to  the  vendor's  title 
made  by  a  third  person,  if  the  vendor  assents  to  a 
rescission  of  the  contract,  he  cannot  recover  dam- 
ages from  the  third  party  for  the  loss  of  the  sale, 
as  it  is  not  the  legal  consequence  of  the  words 
spoken.— Kendall  v.  Stone,  149. 

Words  not  actionable  in  themselves  may  be  ac- 
tionable as  causing  special  damage  to  the  person 
of  whom  they  are  spoken  in  his  office,  profession, 
trade,  employment,  etc. — Forward  v.  Adams,  116; 
Ireland  v.  McGarvish,  118;  Secor  v.  Harris,  119. 

Loss  of  membership  in  religious  society,  to  which 
no  material  advantages  are  attached,  not  such  spe- 
cial damage  as  will  sustain  action  for  speaking 
words  not  actionable  in  themselves. — Roberts  v. 
Roberts,  28. 

That  a  person  under  contract  of  marriage  with 
plaintiff  broke  off  the  contract  in  consequence  of 
words  spoken  of  plaintiff  by  defendant  is  such 
special  damage  as  will  sustain  an  action  for  slan- 
der, although  the  words  are  not  actionable  in 
themselves. — Moody  v.  Baker,  44. 

Damages  cannot  be  apportioned  between  joint 
tort-feasors. — Keegan  v.  Hayden,  68. 

That  the  injuries  complained  of  were  inflicted  in 
a  fight  engaged  in  by  the  parties  by  mutual  consent 
may  be  shown  in  mitigation  of  damages. — Barholt 
V.  Wright,  74. 

Evidence  of  the  truth  of  the  charge,  for  making 
which  an  action  of  slander  is  brought,  is  not  ad- 
missible in  mitigation  of  damages. — Van  Ankin  v. 
Westfall,  113. 

In  an  action  against  a  sheriff  for  a  wrongful  levy 


of  an  execution  on  plaintiff's  goods,  the  fact  that 
the  sheriff  paid  the  proceeds  of  the  sale  to  the 
judgment  creditor  will  not  8»)rve  to  mitigate  the 
damages. — Welsh  v.  Wilson,  215. 


DEATH. 

Act  causing  the  death  of  a  human  being,  though 
clearly  involving  pecuniary  loss,  not  the  ground  of 
an  action  for  damages  at  common  law. — Mobile 
Life  Ins.  Co.  v.  Brame,  247. 

Action  maintainable  against  owner  of  tenement- 
house  for  damages  for  death  of  tenant  caused  by 
failure  of  owner  to  provide  fire-escapes,  as  required 
by  statute.— Willy  v.  MuUedy,  16. 

Whei-e,  by  a  collision  between  two  steam-ships, 
through  negligence  of  the  masters  and  crews  of 
both,  a  person  on  board  one  of  them,  having  noth- 
ing to  do  with  the  negligent  navigation,  is  drowned, 
an  action  may  be  maintained  against  the  owners 
of  tbe  other  vessel  for  damages  for  his  death,  un- 
der a  statute  giving  a  right  of  action  to  personal 
representatives  of  a  deceased  person  for  injuries 
causing  his  death. — Mills  v.  Armstrong,  (The  Ber- 
nina,)  233. 

Action  given  by  statute  of  one  state  to  executor 
or  administrator  of  deceased  person  to  recover 
damages  for  his  death,  caused  by  negligence,  main- 
tainable in  courts  of  another  state  liaving  sub- 
stantially similar  law,  on  proof  of  the  law  of  the 
former  state. — Leonard  v.  Columbia  Steam  Nav. 
Co.,  265. 

No  justification  admissible  where  life  of  one 
person  has  been  lost  by  negligence  of  another, 
whether  by  negligent  act  or  negligent  omission  of 
duty  of  the  latter. — Thomas  v.  Winchester,  66. 

Insurance  company  has  no  right  of  action  against 
the  person  who  feloniously  or  negligently  causea 
the  death  of  a  person  insured  by  it,  the  loss  there- 
by caused  the  company  being  too  remote  and  in- 
direct.— Mobile  Life  Ins.  Co.  v.  Brame,  247. 

By  the  common  law,  actions  for  injuries  to  the 
person  abate  by  death,  and  cannot  be  revived  or 
maintained  by  the  executor  or  the  heir. — Mobile 
Life  Ins.  Co.  v.  Brame,  248. 


DECEIT. 

Proof  of  actual  fraud  necessary,  in  England,  to 
support  action  to  recover  damages  for  deceit. — 
Derry  v.  Peek,  249. 

Action  maintainable  for  damages  sustained  from 
a  false  representation  made  by  defendant,  kno%v- 
ing  it  to  be  false,  or  without  belief  in  its  truth,  or 
recklessly,  without  caring  whether  it  be  true  or 
false.— Derry  v.  Peek,  249. 

But  a  false  statement,  made  through  carelessness, 
and  without  reasonable  ground  for  believing  it  ta 
be  true,  although  it  may  be  evidence  of  fraud,  does 
not,  according  to  the  English  rule,  necessarily  con- 
stitute fraud;  and  such  a  statement,  made  in  the 
honest  belief  that  it  is  true,  is  not  fraudulent,  and 
does  not  render  the  person  making  it  liable  to  an 
action  of  deceit. — Derry  v.  Peek,  249. 

A  statement  by  directors  of  a  tramway  company, 
in  a  prospectus  issued  by  them  for  the  purpose  of 
obtaining  subscriptions  to  shares  in  the  company, 
that  by  their  charter  the  company  had  the  right  to 
use  steam-power  instead  of  horses,  when  in  fact 
the  company  had  such  right  only  if  the  consent  of 
the  board  of  trade  should  be  obtained,  and  such 
consent  was  afterwards  refused,  is  not  ground  for 
an  action  of  deceit  against  the  directors  by  one  who 
took  shares  in  the  company,  relying  upon  such 
false  representation,  if  the  statement  was  made  by 
the  directors  in  the  honest  belief  that  it  was  true. 
— Derry  v.  Peek,  249. 

In  action  of  deceit,  if  fraud  be  proved,  the  mo- 
tive of  the  person  guilty  of  it  is  immaterial;  it 
matters  not  that  there  was  no  intention  to  cheat  or 
injure  the  person  to  whom  the  statement  was  made. 
— Derry  v.  Peek,  2.55. 

Action  maintainable,  in  Massachusetts,  for  dam- 
ages for  false  representations  by  defendant,  in 
stating,  as  of  his  own  knowledge,  material  facts 
susceptible  of  knowledge,  which  were  false,  al- 


IXDEX. 


277 


though  he  did  not  know  them  to  be  false;  that  he 
believed  them  to  be  true  is  no  defense. — Litchfield 
V.  Hutchinson,  257. 

When  the  real  quality  of  property  sold  is  obvious 
to  ordinary  intelligence,  and  the  vendor  and  ven-< 
dee  have  equal  knowledge  or  equal  means  of  ac- 
quiring information,  and  the  truth  or  falsity  of 
representations  made  by  the  vendor  as  to  its  qual- 
ity may  be  ascertained  by  the  vendee  by  the  exer- 
cise of  ordinary  inquiry  or  diligence,  and  they  are 
not  made  for  the  purpose  of  throwing  him  off  his 
guard  and  diverting  him  from  making  inquiry  and 
examination,  which  every  prudent  person  ought  to 
make,  the  vendee  has  no  ground  of  action  for 
fraud,  though  he  purchases  the  property  in  reli- 
ance upon  such  representations. — Long  v.  Warreu, 
263. 

Action  not  maintainable  by  purchaser  of  a  farm 
against  the  vendor  for  false  representations  by 
the  latter,  to  induce  the  purchase,  in  regard  to 
the  absence  of  a  noxious  grass  from  the  farm,  where 
it  appears  tiiat  any  attempt  to  find  such  grass  on 
the  farm,  made  before  the  purchase,  would  have 
diFclosed  its  existence. — Long  v.  Warren,  263. 

A  statement  by  a  warehouseman  in  a  circular 
soliciting  patronage  that  the  exterior  of  his  ware- 
house is  fire-proof  is  the  statement  of  a  matter  of 
fact,  not  a  mere  expression  of  opinion,  and  if  made 
by  him  with  knowledge  that  it  was  false,  and 
with  intent  to  deceive,  a  person  induced  thereby  to 
store  in  the  warehouse  property  which  is  destroyed 
by  fire  communicated  to  portions  of  the  exterior 
which  are  not  fire-proof,  may  recover  from  the 
warehouseman  for  the  loss  so  incurred. — Hickey  v. 
Morrell,  260. 

On  a  sale  of  an  article  for  a  particular  pui-pose, 
the  suppression  bj'  the  vendor  of  a  latent  defect 
which  makes  the  article  unfit  for  such  purpose  is 
a  deceit. — Grigsby  v.  iStapleton,  259. 

Action  not  maintainable  where  damages  too  re- 
mote, indefinite,  and  contingent. — Lamb  v.  Stone, 
10. 

Action  maintainable  for  false  representations 
by  defendant  to  plaintiff  as  to  solvency  of  third 
person,  whereby  plaintiff  was  induced  to  give 
credit  to  the  latter,  and  lost  his  debt.  —Upton  v. 
Vail,  31. 


See  Fraud. 


DEED. 


Presumed  as  grounds  for  rights  by  prescription. 
—Thurston  v.  Hancock,  24. 

Defamation. 
See  Libeo,  Slander;  Subornation  of  Perjury. 

DEMAND. 

Refusal,  by  one  who  has  the  chattel  of  another, 
to  deliver  it  to  the  owner  or  his  agent  on  demand, 
is  evidence  of  conversion. — Singer  Manuf 'g  Co.  v. 
King,  205. 

Where  personal  property  comes  lawfully  into 
the  possession  of  a  person  other  than  the  owner, 
a  demand  is  necessary  before  trover  can  be  main- 
tained for  its  conversion,  unless  such  person  has 
committed  some  wrongful  act  in  connection  there- 
with which  amounts  to  an  actual  conversion. — 
Esmay  v.  Fanning,  204.  ■ 

Refusal  to  deliver  personal  property  to  the  own- 
er on  demand  is  not  necessarily  evidence  of  con- 
version, if  delivery  was  impossible. — Frome  v. 
Dennis,  199. 

Not  necessary  before  suit  against  a  sheriff  or 
constable  for  a  wrongful  seizure  and  sale,  under  exe- 
cution, of  property  not  belonging  to  the  execution 
debtor.— Boulware  v.  Craddock,  214. 

DETINUE. 

Action  of  trover  a  substitute  for  the  action  of 
detinue. — Gordon  v.  Harper,  201. 


DOGS. 

Not  being  animals  fcrcc  naturce,  an  action  at 
law  lies  for  destroying  them,  although,  at  common 
law,  the  stealing  of  them  does  not  amount  to  lar- 
ceny.—White  V.  Brantley,  194. 

A  dog  accustomed  to  bite  -persons  is  a  public 
nuisance,  and  may  be  killed  by  any  one  when 
found  running  at  large.— MuUer  v.  McKesson,  191. 

The  act  of  the  owner  of  one  of  two  dogs  en- 
gaged in  a  fight,  in  attempting  to  part  them,  is  a 
lawful  and  proper  act,  which  he  may  do  by  proper 
and  safe  means,  and  he  is  not  liablefor  an  injury 
thereb.v  done  to  another,  which  is  the  result  of 
pure  accident,  or  is  iavoluntary  and  unavoidable. — 
Brown  v.  Kendall,  53. 

See  Animats. 

DOG-SPEARS. 

Use  held  not  illegal,  in  a  case  of  injury  to  a  dog; 
but,  it  seems,  otherwise,  in  case  of  injury  to  a  hu- 
man being. — Clark  v.  Chambers,  33. 

DOORS. 

Officer  may  enter  outer  door  of  dwelling  peace- 
ably for  purpose  of  serving  process  upon  person 
within. — Hager  v.  Danforth,  81. 

Not  lawful  for  officer,  in  order  to  serve  civil  pro- 
cess, to  break  open  outer  door  of  dwelling  of  the 
party,  although  such  dwelling  is  also  used  by  the 
party  for  transaction  of  business. — Welsh  v.  WU- 
son,  215. 

DRAINAGE. 

Owner  of  land  so  situated  that  surface  waters 
from  the  land  above  naturally  descend  upon  and 
pass  over  it,  may,  in  good  faith,  and  for  the  pur- 
pose of  building  upon  and  improving  his  land,  fill 
and  grade  it,  although  thereby  the  water  is  pre- 
vented from  reaching  it,  and  is  detained  upon  the 
land  above. — Barkley  v.  Wilcox,  170. 

Action  maintainable  for  obstructing  drain.— 
Webb  V.  Portland  Manuf 'g  Co..  21. 


EASEMENTS. 

By  prescription,  founded  on  presumption  of 
grant. — Thurston  v.  Hancock,  25. 

Of  light  and  air,  not  acquired  by  prescription  of 
20  years. — Guest  v.  Reynolds,  3;  Miller  v.  Wood- 
head,  4. 

One  having  an  easement  in  the  land  of  another 
is  liable  for  any  injury  to  the  land  wantonly  and 
unnecessarily  done  by  him  in  the  use  of  his  privi- 
leges.— Dixon  V.  Clow,  18. 


ELECTION  OF   REMEDY. 

Where,  by  negligence  or  wrongful  act  on  the 
part  of  a  common  carrier  of  passengers,  a  personal 
injury  is  suffered  by  a  passenger,  he  may  sue  for 
a  breach  of  the  contract,  if  there  is  one,  or,  at  his 
election,  may  proceed  as  for  a  tort. — Baltimore  City 
Pass.  Ry.  Co.  v.  Kemp,  54. 

ELECTIONS  AND  VOTERS. 

Violation  of  the  right  to  vote  at  election  a 
ground  of  action. — Webb  v.  Portland  Manuf 'g  Co., 
20;  Smith  v.  Thackerah,  30. 


ELEVATED  RAILWAYS. 

Action  maintainable  for  personal  injuries  to 
plaintiff  from  being  run  over  on  the  street  by 
horse  caused  to  run  away  by  fire  negligently 
allowed  to  fall  upon  him  from  locomotive  on  de- 
fendant's elevated  railway. — Lowery  v.  Manhat- 
tan Ry.  Co.,  3S. 


278 


mDEX. 


ENGLISH   DOCTRINE. 

Of  ancient  lights,  not  applicable  in  Illinois. — 
Guest  V.  Reynolds,  3;  Miller  v.  Woodhead,  4. 

That  where  highway  is  obstructed  temporarily, 
a  traveler  has  a  right  to  go  upon  adjoining  lands, 
without  being  guilty  of  trespass,  recognized  in 
America. — Campbell  v.  Race,  160. 

Action  maintainable  for  speaking  words  imput- 
ing a  criminal  offense  punishable  corporally, 
though  not  indictable. — Webb  v.  Beavan,  112. 

That  judges,  counsel,  parties,  and  witnesses  are 
absolutely  exempted  from  liability  to  an  action  for 
defamatory  words  published  in  course  of  judicial 
proceedings,  generally  adopted  in  the  American 
courts,  with  the  qualification,  as  to  parties,  coun- 
sel, and  witnesses,  that,  in  order  to  be  privileged, 
their  statements  must  be  pertinent  and  material 
to  the  case.— Rice  v.  Coolidge,  14. 

A  false  statement,  made  through  carelessness 
and  without  reasonable  ground  for  believing  it  to 
be  true,  although  it  maybe  evidence  of  fraud,  does 
not,  according  to  the  English  rule,  necessarily  con- 
stitute fraud ;  and  such  a  statement,  made  in  the 
honest  belief  that  it  is  true,  is  not  fraudulent,  and 
does  not  render  the  person  making  it  liable  to  an 
action  of  deceit.— Derry  v.  Jr'eek,  249. 

Former  doctrine  by  which  the  negligence  of  the 
persons  in  charge  of  a  public  conve3'ance  was  im- 
puted to  passengers  therein,  now  overruled. — Mills 
V.  Armstrong,  (The  Bernina,)  233. 

EQUITY. 

Will  restrain  repetition  or  continuance  of  inju- 
rious act  which  may  become  the  foundation  or  ev- 
idence of  an  adverse  right.— Webb  v.  Portland 
Manuf'g  Co.,  19. 

Will  restrain  pollution  of  a  water-course  by  acts 
which  tend  to  create  a  nuisance  of  a  continuous 
and  constantly  accruing  nature,  for  which  an  ac- 
tion at  law  can  furnish  no  adequate  relief. — Merri- 
field  V.  Lombard,  175. 

A  nuisance  will  be  restrained,  in  order  to  pre- 
vent irreparable  injury  and  a  multiplicity  of  suits; 
even  though  the  injury  is  only  occasional. — Camp- 
bell V.  Seaman,  106. 

Acquiescence  or  laches  may  bar  equitable  relief 
against  a  nuisance. — Campbell  v.  Seaman,  167. 

Although  equity  will  not  interfere  to  secure  to  a 
party  a  legal  right  of  no  value  to  him,  but  leave 
him  to  his  remedy  at  law,  it  will  not  restrain  a 
party  from  enforcing  his  legal  right  upon  the 
ground  that  it  is  of  no  value. — Clinton  v.  Myers, 
175. 

EVIDENCE. 

In  an  action  against  a  teacher  for  assault  and 
battery  in  whipping  a  pupil,  evidence  of  habitual 
misconduct  of  the  pupil  prior  to  the  punishment  is 
admissible  on  behalf  of  defendant. — Sheehan  v. 
Sturges,  SO. 

In  an  action  for  a  slander,  whereby  a  contract  of 
marriage  between  plaintiff  and  a  third  person  was 
broken  off  by  the  latter,  a  conversation  between 
such  person  and  another,  not  offered  to  support 
testimony  given  by  him  in  the  case,  but  as  inde- 
pendent evidence,  is  not  admissible. — Moody  v. 
Baker,  44. 

In  an  action  of  trover,  on  the  question  of  the 
possession  by  defendant  of  the  property  in  ques- 
tion, declarations  of  himself  and  of  the  person 
from  whom  he  received  possession,  contempora- 
neous with  the  transfer  and  indicative  of  its  char- 
acter, are  admissible  as  part  of  the  res  gestce. — 
Frome  v.  Dennis,  200. 

Testimony  of  experts  in  the  business  of  fire  in- 
surance not  admissible  on  the  question  of  the  hazard 
and  exposure  of  one  building  to  fire  from  another, 
as  dependent  on  the  distance  between  them. — 
Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  41. 

On  the  question  of  the  probability  that  a  person 
whose  death  was  caused  by  a  fire  in  a  tenement- 
nouse  would  have  escaped  had  a  fire-escape  been 
provided,  as  required  by  law,  it  may  be  inferred, 
from  the  construction  of  the  house,  and  the  struct- 


ure of    fire-escapes,  where   one  would  probably 
have  been  placed. — Willy  v.  Mulledy,  16. 

The  facts  that  a  person,  whose  death  was  caused 
by  a  fire  in  a  tenement-house,  knew  that  there  was 
a  scuttle  in  the  i-oof,  had  time  after  notice  of  the  fire 
to  reach  it,  and  made  efforts  to  escape,  are  suflicient 
to  justify  a  jury  in  finding  that  such  person  tried 
to  escape  in  that  direction,  and  failed  for  want  of  a 
ladder  to  the  scuttle,  which  the  owner  had  not  pro- 
vided as  required  by  the  statute. — Willy  v.  Mulle- 
dy, 16. 

EXCAVATIONS. 

Owner  excavating  on  his  own  land  liable  for  loss 
of  or  injury  to  soil  of  adjoining  land  caused  by  re- 
moval of  lateral  support. — Thurston  v.  Hancock,  23. 

Occupant  of  land  lawfully  making  excavation 
therein  in  ordinary  manner,  not  near  highway,  not 
liable  to  injuries  to  trespasser  falling  into  excava- 
tion.— Gramlich  v.  Wurst,  5. 


EXECUTION. 

A  sheriff  or  constable  who,  under  an  execution, 
seizes  and  sells  property  not  belonging  to  the  j  udg- 
ment  debtor,  though  in  his  possession,  is  a  mere 
trespasser,  and  liable  to  an  action  by  the  owner  of 
the  property  without  any  demand  befoi'e  suit. — 
Bouhvare  v.  Craddock,  214. 

Levy  of  execution  by  breaking  outer  door  of 
dwelling  of  execution  debtor,  invalid ;  and  the  fact 
that  the  sheriff  making  such  levy  sold  the  goods 
and  paid  the  proceeds  to  the  execution  creditor  is 
not  available  to  him  in  mitigation  of  damages. — 
Welsh  V.  Wilson,  215. 

EXECUTORS  AND  ADMINIS- 
TRATORS. 

Action  given  by  statute  of  one  state  to  executor 
or  administrator  of  deceased  person  to  recover 
damages  for  his  death,  caused  by  negligence, 
maintainable  in  courts  of  another  state  having  sub- 
stantially similar  law,  on  proof  of  the  law  of  the 
former  state. — Leonard  v.  Columbia  Steam  Nav. 
Co.,  265. 

Letters  of  administration  granted  by  a  surro- 
gate are  conclusive  as  to  the  authority  of  the  ad- 
ministrator therein  named  to  bring  an  action  given 
by  law  to  the  personal  representatives  of  one  de- 
ceased, in  an  action  by  him  under  such  a  law. — 
Leonard  v.  Columbia  Steam  Nav.  Co.,  265. 

EXPERT  TESTIMONY. 

Not  admissible  as  to  matters  of  common  observa- 
tion.—Milwaukee  &  St.  P.  Ry.  Co.  V.  Kellogg,  42. 

EXPLOSIVES. 

Keeping  or  manufacturing  gunpowder  or  fire- 
works, being  a  lawful  business,  does  not  necessa- 
rily constitute  a  nuisance ;  whether  it  does  depends 
upon  the  locality,  the  quantity,  and  the  surround- 
ing circumstances,  and  not  entirely  upon  the  de- 
gree of  care  used. — Heeg  v.  Licht,  178. 


FALSE  IMPRISONMENT. 

Arrest  without  warrant,  where  warrant  is  by 
law  necessary,  constitutes  false  imprisonment. — 
HoUey  v.  Mix,  93;  Carl  v.  Ayers,  94;  Quinn  v. 
Heisel,  96;  Phillips  v.  Trull,  97. 

That  arrest  and  detention  complained  of  were 
under  process  is  not  a  defense,  where  such  process 
is  void  on  its  face. — Gelzenleuchterv.  Niemeyer,  88. 

Arrest  of  right  person  under  wrong  name, 
through  misnomer  in  the  process,  without  an  alle- 
gation that  the  true  name  is  unknown,  is  false  im 
prisonment. — Gelzenleuchter  v.  Niemeyer,  90. 

Obstructing  the  passage  of  a  person  in  one  direc- 
tion only  along  a  portion  of  a  public  highway,  he 


INDEX. 


279 


being  free  to  go  in  another  direction,  does  not 
amount  to  an  imprisonment  for  which  he  can  main- 
tain an  action  for  false  imprisonment, — Bird  v. 
Jones,  82. 

Detention  of  passenger  by  carrier,  for  the  pur- 
pose of  enforcing  payment  of  fare,  illegal. — Lynch 
V.  Metropolitan  El.  Ry.  Co.,  86. 

The  distinction  between  false  imprisonment  and 
malicious  prosecution  is  that  an  imprisonment  un- 
der legal  process,  in  an  action  commenced  and  car- 
ried on  maliciously  and  without  probable  cause,  is 
malicious  prosecution ;  and  that  false  imprison- 
ment is  a  trespass  committed  against  a  person  by 
unlawfully  arresting  and  imprisoning  him  without 
any  legal  "authority. — Gelzenleuchter  v.  Niemeyer, 
90. 

One  who  instigates  and  procures  an  ofBcerto  ar- 
rest another  upon  a  void  warrant  is  liable  to  an  ac- 
tion therefor. — Rice  v.  Coolidge,  14. 

One  causing  the  arrest  of  an  innocent  person  on 
a  charge  of  crime,  upon  a  groundless  suspicion,  is 
liable  to  him  in  damages  therefor. — Carl  v.  Ayers, 
94. 

Liability  for  arrest  under  void  process  attaches 
when  wrong  is  committed,  without  such  process 
being  vacated  or  set  aside;  but  process  merely  ir- 
regular must  be  vacated  or  annulled  before  an  ac- 
tion can  be  maintained  for  damages  from  its  en- 
forcement.— Fischer  v.  Langbein,  yo. 

False  Representations. 

See  Deceit;  Fraud. 


FELONY. 

Arrest  without  warrant  justifiable,  if  felony  was 
committed  by  person  arrested,  or  if  a  felony  was 
in  fact  committed,  and  there  is  reasonable  ground 
to  suspect  the  person  arrested,  or,  even  if  no  felony 
was  committed,  where  the  arrest  is  made  by  an  of- 
ficer on  a  charge  thereof  upon  information  on 
which  he  had  reason  to  rely. — Holley  v.  Mix,  93. 


FENCES. 

Tenant  or  owner  not  obliged  to  fence  against  ad- 
joining owner  or  occupier,  at  common  law,  except 
by  prescription;  and,  in  that  case,  only  against 
cattle  rightfullj'  in  the  adjoining  close. — Lawrence 
V.  Combs,  163. 

Owner  or  occupant  of  land  not  required  to  fence 
it  to  prevent  injuries  to  trespassers  from  falling 
into  lawful  excavation,  not  near  highvvaj^. — Gram- 
lich  V.  Wurst,  7. 

Fence  which  obstructs  access  of  light  and  air  to 
house  of  adjoining  owner  not  ground  of  action  un- 
less adverse  right  is  invaded. — Guest  v.  Rey- 
nolds, 1. 

FIRE. 

Action  not  maintainable  for  destruction  of  plain- 
tiff's property  by  fire  communicated  from  property 
of  another  set  on  fire  by  defendant's  negligence, 
where  such  spread  of  the  fire  is  not  the  ordinary 
and  natural  result  of  defendant's  negligence,  but 
is  dependent  on  accidental  and  varj-ing  circum- 
stances.— Lowery  V.  Manhattan  Ry.  Co.,  40. 

The  burning  of  plaintiff's  property  by  fire  com- 
municated from  a  building  which  had  been  set  on 
fire  by  sparks  allowed  to  fall  upon  it  by  negligence 
on  defendants'  part  is  not  too  remote  from  such 
negligence  to  permit  a  recovery  therefor,  if  the 
burning  of  his  property  was  a  result  naturally  and 
reasonably  to  have  been  expected  from  the  burn- 
ing of  such  building,  under  the  circumstances,  and 
the  result  of  the  continued  effect  of  the  sparks 
falling  on  the  building,  without  the  aid  of  other 
causes  not  reasonably  to  have  been  expected. — 
Milwaukee  &  St.  P.  Ri*.  Co.  v.  Kellogg,  41. 

Action  maintainable  for  personal  injuries  to 
plaintiff  from  being  run  over  in  the  street  by  horse 
caused  to  run  away  by  fire  negligently  allowed  to 
fall  upon   him   from   locomotive  on   defendant's 


elevated  railway. — Lowery  v.  Manhattan  Ry.  Co., 
3S. 

FIRE-ESCAPES. 

Failure  of  owner  of  tenement-house  to  comply 
with  statute  requiring  fire-escapes  to  be  provided 
therefor  is  a  breach  of  duty,  for  which  he  is  liable 
to  a  tenant  for  damage  thereby  caused  to  the  lat- 
ter.—Willy  V.  MuUedy,  16. 

FIRE- WORKS. 

Keeping  or  manufacturing  gunpowder  or  fire- 
works, being  a  lawful  business,  does  not  neces- 
sarily constitute  a  nuisance;  whether  it  does  de- 
pends upon  the  locality,  the  quantity,  and  the  sur- 
rounding circumstances,  and  not  entirely  upon  the 
degree  of  care  used. — Heeg  v.  Licht,  178. 

FORCIBLE  ENTRY  AND  DE- 
TAINER. 

Proceeding  under  Ohio  statute,  being  summary 
in  its  character,  and  capable  of  becoming,  when 
prosecuted  wrongfully,  excessively  annoying  and 
harassing,  is  ground  for  action  of  malicious  pros- 
ecution, if  instituted  and  prosecuted  maliciously 
and  without  probable  cause. — Pope  v.  Pollock,  104. 

FRAUD. 

Action  maintainable  for  fraud,  coupled  with 
damage. — Upton  v.  Vail,  31 ;  Hickey  v.  Morrell.  362. 

Purchasing  from  debtor  property  subject  to 
attachment,  and  aiding  him  to  abscond,  not  ground 
of  action  for  fraud  by  creditor  having  no  lien  or 
claim  on  such  property. — Lamb  v.  Stone,  8. 

An  unreasonable  delay  in  performance  of  an 
agreement  to  do  a  certain  act  may  be  intended  to 
effect  a  scheme  to  gain  an  advantage  by  unlawful 
means  and  with  fraudulent  motives,  and  such  acts 
may,  therefore,  sustain  an  action  for  a  tort,  such 
breach  of  contract  being  one  of  the  elements  con 
stituting  the  tort. — Rich  v.  New  York  Cent.  &  H. 
R.  R.  Co..  56. 

Proof  that  a  false  representation  was  made  with 
knowledge  of  its  falsity,  or  without  belief  in  its 
truth,  or  recklessly,  without  caring  whether  it  be 
true  or  false,  is  sufficient  proof  of  actual  fraud,  re- 
quired by  the  English  rule,  to  support  an  action 
for  damages  for  deceit. — Derry  v.  Peek,  249. 

But  a  false  statement,  made  through  careless- 
ness and  without  reasonable  ground  for  believing 
it  to  be  true,  although  it  maybe  evidence  of  fraud, 
does  not,  according  to  the  English  rule,  necessarily 
constitute  fraud;  and  such  a  statement,  made  in 
the  honest  belief  that  it  is  true,  is  not  fraudulent, 
and  does  not  render  the  person  making  it  liable  to 
an  action  of  deceit. — Derry  v.  Peek,  249. 

Action  maintainable,  in  Massachusetts,  for  dam- 
ages for  false  representations  by  defendant,  in 
stating,  as  of  his  own  knowledge,  material  facts 
susceptible  of  knowledge,  which  were  false,  al- 
though he  did  not  know  them  to  be  false;  that  he 
believed  them  to  be  true  is  no  defense.— Litchfield 
V.  Hutchinson,  257. 

Action  maintainable  for  false  representations  by 
defendant  to  plaintiff  as  to  solvency  of  third  per- 
son, whereby  plaintiff  was  induced  to  give  credit 
to  the  latter  and  lost  his  debt. — Upton  v.  Vail,  31. 

Representations  made  to  a  father  to  induce  him 
to  purchase  a  gun  for  the  use  of  his  son,  known  by 
the  vendor  making  them  to  be  false,  by  which  the 
son  is  induced  to  use  the  gun,  operate  as  a  distinct 
fraud  on  the  son;  and  he  may  maintain  an  action 
against  the  veudor  for  injuries  sustained  in  conse- 
quence thereof. — Winterbottom  v.  Wright,  &t. 

In  an  action  of  deceit,  if  fraud  be  proved,  the 
motive  of  the  person  guilty  of  it  is  immaterial;  it 
matters  not  that  there  was  no  intention  to  cheat  or 
injure  the  person  to  whom  the  statement  was 
made. — Derry  v.  Peek,  2.o5. 

In  an  action  of  tort  for  an  alleged  fraud,  one  of 
the  elements  of  which  is  a  breach  of  a  contract  by 
an  unreasonable  delay  in  performance  of  the  con- 


280 


INDEX. 


tract  obligation,  proof  of  the  contract,  and  of  the  ' 
delay  in  performance  thereof,  and   of  the  reasons 
therefor,  are  essential  links  in  the  chain,  and  the  \ 
relative  situations  of  the  parties  and  other  cir-  j 
cumstances  which  are  elements  of  the  transaction 
may  be  shown. — Rich  v.  New  York  Cent.  &  H.  R. 
R.  Co.,  56. 
See  Deceit. 

FRAUDS,  STATUTE  OF. 

Does  not  apply  to  oral  representations  as  to  solv- 
CEcy  of  another. — Upton  v.  Vail,  31. 

FRAUDULENT  PURCHASE. 

Of  property  of  debtor  liable  to  attachment,  not 
ground  of  action  by  creditor  for  damages  for  the 
fraud;  the  remedy  being  by  suit  to  avoid  the  sale, 
or  by  attachment. — Lamb  v.  Stone,  8. 

GAS. 

Action  maintainable  for  injuries  from  explosion 
of  gas  against  defendants,  liv  whom  it  was  allowed 
to  escape  into  plaintiffs  premises,  although  the 
explosion  was  caused  by  negligence  of  a  third  per- 
son.— Clark  V.  Chambers,  35. 

GRANT. 

Presumed  as  ground  for  right  by  prescription.— 
Thurston  v.  Hancock,  35. 

GUNPOWDER. 

The  mere  keeping  of  gunpowder  in  dangerous 
proximity  to  the  premises  of  another  is  a  nuisance, 
rendering  the  person  keeping  it  liable  for  injuries 
caused  by  its  explosion,  irrespective  of  the  ques- 
tion of  his  negligence. — Heeg  v.  Licht,  178. 

GUNS. 

Pointing  an  unloaded  gun  at  one  who  supposes  it 
to  be  loaded,  although  within  the  distance  it  would 
carry  if  loaded,  i^  not,  without  more,  an  assault 
punishable  criminally,  although  it  may  sustain  a 
civil  action  for  damages. — Chapman  v.  State,  70. 

Action  maintainable  for  personal  injuries  caused 
by  discharge  of  gun  left  loaded  by  defendant's 
negligence,  although  negligence  of  third  person 
intervened  as  immediate  cause  of  accident. — Clark 
V.  Chambers,  33;  Thomas  v.  Winchester,  b<. 


HIGHWAYS. 

One  unlawfully  placing  dangerous  obstruction 
in  public  highway  is  liable  for  personal  injuries 
thereby  occasioned  to  a  traveler,  although  the  im- 
mediate cause  of  the  accident  was  the  intervening 
act  of  another. — Clark  v.  Chambers,  32. 

Persons  who,  without  authority,  make  or  con- 
tinue a  covered  excavation  in  a  public  street  or 
highway  for  a  private  purpose,  are  liable  for  all  in- 
juries to  individuals  resulting  from  the  street  or 
highway  being  thereby  less  safe  for  its  appropri- 
ate use,  irrespective  of  the  question  of  negligence. 
— Congreve  v.  Smith,  180. 

That  the  injuries  were  caused  by  the  negligence, 
in  covering  the  excavation,  of  servants  of  contract- 
ors for  that  work,  who  had  contracted  to  do  it 
properly,  does  not  relieve  from  liability  the  persons 
who  procured  it  to  be  done,  and  did  not  object  to 
it,  and  continued  the  excavation  in  its  unsafe  con- 
dition, they  being  bound,  at  their  peril,  to  make 
and  at  all  times  keep  the  street  as  safe  as  it  would 
have  been  if  the  excavation  had  not  been  made. — 
Congreve  v.  Smith,  ISO. 

Traveler  driving  on  highway  through  the  coun- 
try among  a  sparse  population,  not  bound  to  keep 
a  constant  lookout. — Hartfield  v.  Roper,  228. 

A  child  two  years  old,  permitted  by  his  parents 


to  be  in  the  beaten  track  of  a  highway  with  no  one 
near  him,  cannot  recover  for  injuries  from  being 
run  over  by  the  horses  of  a  person  driving  thereon, 
unless  the  injuries  were  voluntarily  inflicted  by  or 
were  the  result  of  gross  carelessness  of  the  trav- 
eler.— Hartfield  v.  Roper,  22S. 

A  child  two  years  of  age,  who,  while  under  the 
care  of  an  adult  sister,  goes  upon  the  track  of  a 
horse  railroad,  and  is  there  run  over  by  the  care- 
lessness of  the  driver  of  a  car  thereon,  is  not  de- 
prived of  a  right  of  action  for  the  injury,  although 
the  sister's  carelessness  of  supervision  was,  in 
part,  the  cause  of  the  injury. — Newman  v.  Phil- 
lipsburg  Horse-Car  R.  Co..  231. 

One  driving  too  fast  on  the  public  highway  is 
liable  for  running  over  a  domestic  animal  therein, 
where  his  negligence  was  the  immediate  cause  of 
the  injury,  although  the  injured  animal  was 
wrongfully  and  negligently  left  in  the  highway  by 
his  owner;  the  latter's  negligence  being  only  re- 
mote.— Davies  v.  Mann,  225. 

Traveler  on  highway  not  liable  for  injury  by  col- 
lision to  animal  allowed  by  its  owner  to  be  in  the 
highway  unattended,  where  the  collision  happened 
from  mere  inadvertence  on  the  part  of  the  trav- 
eler, and  there  was  equal  or  greater  neglect  on  the 
side  of  the  owner  of  the  animal. — Hartfield  v.  Ro- 
per, 230. 

Obstruction  of  highway  an  excuse  for  entry  on 
adjoining  land. — Newkirkv.  Sabler,  151;  Campbell 
V.  Race,  160. 

Obstruction  of  passage  of  a  person  in  one  direc- 
tion only  along  a  portion  of  a  public  highway,  he 
being  free  to  go  in  another  direction,  does  not 
amount  to  an  imprisonment  for  which  he  can  main- 
tain an  action  for  false  imprisonment. —  Bird  v. 
Jones,  82. 

HOMICIDE. 

Self-defense  an  excuse,  where  the  person  as- 
sailed had  reason  to  believe  that  his  assailant  in- 
tended to  do  him  great  bodily  harm,  and  that  he 
was  in  danger  of  such  harm,  and  that  no  other 
means  could  effectually  prevent  it. — Common- 
wealth V.  O'Malley,  77. 

HORSES. 

One  breaking  a  horse  in  a  public  place  is  liable 
in  damages  to  another  person  hurt  by  the  horse. — 
Morain  v.  Devlin,  50. 

Action  maintainable  for  injuries  caused  by 
plaintiff's  horses  taking  fright  at  a  stream  of  wa- 
ter allowed  by  defendants  to  spent  up  in  the  road. 
— Clark  V.  Chambers,  34. 

Action  maintainable  for  injuries  caused  by  de- 
fendant's horse,  left  unattended  in  the  street,  al- 
though immediate  cause  of  injury  was  the  inter- 
vening act  of  a  third  person. — Clark  v.  Chambers, 
33;  Thomas  V.  Winchester,  G7. 

Action  maintainable  for  personal  injuries  to 
plaintitf  from  being  run  over  on  the  street  by  horse 
caused  to  run  away  by  fire  negligently  allowed  to 
fall  upon  him  from  locomotive  on  defendant's  ele- 
vated railway. — Lowery  v.  Manhattan  Rj'.Co.,  38. 

One  who  hires  a  horse  to  drive  to  a  particular 
place,  and  drives  beyond  the  place  or  in  another 
direction,  is  liable  for  a  conversion. — Freeman  v. 
Roland,  200. 

HUMAN  LIFE. 

No  justification  admissible  where  life  of  one  per- 
son has  been  lost  by  negligence  of  another,  whether 
by  negligent  act  or  negligent  omission  of  duty  of 
the  latter. — Thomas  v.  Winchester,  66. 

Negligence  cannot  be  imputed  bylaw  to  a  per- 
son in  his  effort  to  save  the  life  of  another  in  ex- 
treme peril,  unless  made  under  such  circumstances 
as  to  constitute  rashness  in  the  juagment  of  pru- 
dent persons. — Eckert  v.  Long  Island  R.  Co.,  236. 

HUSBAND  AND  WIFE. 

Husband  may  recover  for  slander  of  wife,  caus- 
ing, as  a  natural  consequence,  injury  to  him  by 


rN^DEX. 


281 


loss  of  trade  and  custom  in   his  business.— Van 
Horn  V.  Van  Horn,  110. 

Action  maintainable  b\'  husband  for  loss  of  con- 
snrtinin  with  his  wife,  which  is  implied  from 
criminal  conversation  of  the  defendant  with  her, 
whether  defendant's  act  was  with  or  against  her 
will,  and  although  it  may  have  caused  no  actual 
loss  of  her  services  to  her  husband.— Bigaouette 
V.  Paulet,  21tj. 

ICE. 

Action  not  maintainable  for  injuries  from  slip- 
ping on  ice  formed  in  street,  against  one  who  al- 
lowed the  water  forming  it  to  fiow  into  the  gutter 
without  being  aware  of  an  obstruction  to  its  pass- 
ing into  the  sewer  which  caused  it  to  spread  into 
the  street  and  become  frozen. — Clark  v.  Chambers, 
35. 

IMPRISONMENT. 

Includes,  besides  mere  loss  of  freedom  to  go 
where  one  pleases,  restraint  within  limits  defined 
by  an  exterior  will  or  power. — Bird  v.  Jones,  b3. 

Actual  violence  not  necessary  to  constitute. — 
Bird  V.  Jones,  83,  85. 

Municipal  corporation  cannot  enforce  obedience 
to  its  by-laws  or  ordinances  by  imprisonment,  un- 
less expressly  authorized  so  to  do  by  statute. — 
Lynch  v.  Aletropolitan  El.  Ry.  Co.,  87. 

See  False  Imprisunincnt. 

IMPUTED  NEGLIGENCE. 

Negligence  of  persons  in  charge  of  a  public  con- 
veyance cannot  be  imputed  to  a  passenger  therein 
who  is  injured  by  the  joint  negligence  of  such  per- 
sons and  those  in  charge  of  another  conveyance  to 
defeat  his  action  against  the  latter. — Mills  v.  Arm- 
strong, (The  Bernina.j  233. 

A  child  of  tender  years  is  chargeable  with  the 
negligence  of  the  person  having  him  in  charge. — 
Harttield  v.  Roper,  228.  Contra,  Newman  v.  Phil- 
lipsburg  Horse-Car  R.  Co.,  231. 

INDICTMENT. 

Entry  of  nolle  prosequi  to  indictment,  by  leave 
of  court,  on  motion  of  the  public  prosecutor,  made 
after  consultation  with  and  by  request  of  the  par- 
ty on  whose  complaint  the  indictment  was  found, 
is  a  termination  of  the  criminal  charge  which  will 
sustain  an  action  by  the  accused  for  malicious  pros- 
ecution.— Moulton  V.  Beecher,  103. 


INFANCY. 

An  infant  may  bring  a  suit  at  any  age,  but.  if  the 
suit  depends  upon  a  condition  on  his  side,  he  must 
show  that  it  was  performed. — Hartfield  v.  Roper, 
230. 

A  person  seeing  a  small  child  on  a  railroad  track 
in  extreme  peril  from  a  rapidly  approaching  train 
owes  to  the  child  the  dutj*  to  rescue  it  if  he  can  do 
so  without  incurring  great  danger  to  himself,  and 
the  law  will  not  impute  negligence  to  an  effort  by 
him  to  rescue  the  child,  unless  made  under  such 
circumstances  as  to  constitute  rashness  in  the  judg- 
ment of  prudent  persons. — Eckert  v.  Long  Island 
R.  Co.,  266. 

Corporal  punishment  of  pupil  by  teacher  to  en- 
force compliance  with  proper  rules  for  good  con- 
duct and  order  of  school  justifiable,  if  inflicted 
with  sound  discretion  and  judgment,  and  adapted 
to  the  offender  as  well  as  to  the  offense. — Sheehan 
V.  Sturges,  80. 

A  child  of  such  tender  years  as  to  be  incapable 
of  exercising  judgment  and  discretion  cannot  be 
charged  with  contributory  negligence. — Twist  v. 
Winona  &  St.  P.  R.  Co.,  226. 

But  even  a  child  is  bound  to  use  such  reasonable 
care  as  one  of  his  age  and  mental  capacity  is  capa- 
ble of  using,  and  his  failure  to  do  so  is  negligence. 
—Twist  V.  Winona  &.  St.  P.  R.  Co.,  226. 


The  conduct  of  a  boy  nearly  10  years  old,  of  aver- 
age intelligence,  familiar  in  a  general  way  with 
the  working  of  a  railroad  turn-table,  knowing  that 
it  was  dangerous  to  play  upon  it,  and  that  so  doing 
was  forbidden  by  the  railroad  company,  and  hav- 
ing been  warned  by  his  father  not  to  go  upon  it, 
who  nevertheless  engages  with  other  boys  in 
swinging  upon  it  while  in  motion,  and  is  injured 
therebj',  is  such  contributory  negligence  as  will 
defeat  a  recovery  for  such  injury,  although  he  may 
not  have  been  of  sufficient  age  and  discretion  to 
understand  the  full  extent  of  the  danger. — Twist 
V.  Winona  &  St.  P.  R.  Co.,  226. 

A  child  of  tender  years  is  chargeable  with  neg- 
ligence of  the  person  having  him  in  charge. — Hart- 
field  V.  Roper,  228.  Contra,  Newman  v.  Phillips- 
burg  Horse-Car  R.  Co.,  231. 

A  child  two  years  old,  permitted  by  his  parents 
to  be  in  the  beaten  track  of  the  highway  with  no 
one  near  him,  cannot  recover  for  injuries  from  be- 
ing run  over  by  the  horses  of  a  person  driving 
thereon,  unless  the  injuries  were  voluntarih'  in- 
flicted b\'  or  were  the  result  of  gross  carelessness 
of  the  traveler. — Hartfield  v.  Roper,  228. 

A  child  two  years  of  age,  who,  while  under  the 
care  of  an  adult  sister,  goes  upon  the  track  of  a 
horse  railroad,  and  is  there  run  over  by  the  care- 
lessness of  the  driver  of  a  car  thereon,  is  not  de- 
prived of  a  right  of  action  for  the  injury,  although 
the  sister's  carelessness  of  supervision  was,  in 
part,  the  cause  of  the  injury. — Newman  v.  Phillips- 
burg  Horse-Car  K.  Co.,  231. 

Infant  may  recover  for  injuries  from  dangerous 
appliance  adjoining  a  public  way,  although  re- 
ceived while  trespassing. — Gramlich  v.  Wurst,  b; 
Clark  V.  Chambers,  34. 

Infant  who  hires  a  horse  and  wagon  to  drive  to 
a  particular  place,  and  drives  beyond  such  place, 
is  liable  for  a  conversion. — Freeman  v.  Boland, 
200. 

Infant  liable  personally  for  wrongs  which  he 
commits  against  the  person  and  property  of  others. 
—Hartfield  v.  Roper,  230. 

Action  of  trespass  maintainable  against  an  in- 
fant.— Hartfield  v.  Roper,  230. 

Action  of  trover  maintainable  against  an  infant 
for  mere  non-feasance;  e.  g.,  a  non-delivery  of 
goods,  where  they  do  not  come  into  the  infant's 
hands  by  contract. — Hartfield  v.  Roper,  230. 


INJUNCTION. 

May  be  granted  to  restrain  repetition  or  contin- 
uance of  injurious  act  whicn  may  become  the 
foundation  or  evidence  of  an  adverse  right. —  Webb 
V.  Portland  Manuf'g  Co.,  19. 

Writ  of  injunction  not  a  matter  of  grace,  but  of 
right,  in  a  proper  case ;  and  will  be  granted  to  re- 
strain irreparable  injury,  whether  it  be  to  the  en- 
joj-ment  of  the  necessities  or  the  luxuries  of  life. — 
Campbell  v.  Seaman,  164. 

The  destruction  of  ornamental  and  useful  trees 
and  vines  by  the  vapors  and  gases  from  a  brick- 
kiln is  such  irreparable  injury  as  a  court  of  equity 
will  enjoin. — Campbell  v.  Seaman,  164. 

An  injunction  restraining  the  ringing  of  a  fac- 
tory bell,  used  to  notify  employes,  before  a  certain 
hour  in  the  morning,  does  not  give  a  vested  right 
which  the  legislature  is  powerless  to  take  away  by 
a  statute  legalizing  the  ringing  of  such  bell  before 
that  hour,  and  on  a  bill  of  review  in  such  case  the 
injunction  will  be  dissolved. — Sawyer  v.  Davis, 
18b. 

INNKEEPERS. 

Cannot  detain  person  of  guest  to  secure  payment 
of  bill. — Lynch  v.  Metropolitan  El.  Ry.  Co..  s7. 

To  say  of  a  keeper  of  a  house  of  public  entertain- 
ment that  he  is  a  "dangerous  man, "  a  "desperate 
man,"  and  that  the  speaker  is  "afraid  to  go  in  his 
house  alone, "  is  not  ground  for  an  action  of  slan- 
der, as  affecting  such  person  in  his  business,  since 
the  words  do  not  relate  to  his  business  character, 
or  charge  any  delinquency  in  his  business. — Ire- 
land v.  McGaVvish,  118. 


282 


INDEX. 


INSANITY. 

Not  ground  of  exemption  from  liability  for  tort. 
— Morain  v.  Devlin,  50. 

Lunatic  liable  personally  for  wrongs  which  he 
commits  against  the  person  and  property  of  others. 
— Hartfield  v.  Roper,  230. 

Defense  to  crime. — Morain  v.  Devlin,  51. 

Publication  in  newspaper  of  statement  imput- 
ing insanity  to  a  teller  in  a  bank,  libelous  per  se, 
as  tending  to  injure  him  in  his  employment. — 
Moore  v.  Francis,  126. 

INSUKANCB. 

Insurance  company  has  no  right  of  action  against 
the  person  who  feloniously  or  negligently  causes 
the  death  of  a  person  insured  by  it,  the  loss  there- 
by caused  the  company  being  too  remote  and  indi- 
rect.— Mobile  Life  Ins.  Co.  v.  Brame,  247. 

INTENT. 

Wrongful  intent  not  necessary  to  constitute 
tort  in  cases  of  trespass. — Bessey  v.  OUiot,  49; 
Weaver  v.  Ward,  49 ;  Guille  v.  Swan,  49 ;  Hobart 
V.  Hagget,  195 ;  Dexter  v.  Cole,  195. 

Nor  in  cases  of  conversion  of  personal  property, 
— Laverty  v.  Snethen,  197. 

One  who  does  an  illegal  or  mischievous  act, 
likely  to  prove  injurious  to  others,  is  answerable 
for  the  consequences  directly  and  naturally  result- 
ing therefrom,  although  he  did  not  intend  to  do 
the  particular  injury  which  followed. — Vanden- 
burgh  V.  Truax,  3T. 

Wrongful  intent  necessary  to  constitute  tort,  in 
cases  of  fraud,  malicious  prosecution,  etc. — Guille 
V.  Swan,  50,  note. 

In  an  action  of  deceit,  if  fraud  be  proved,  the 
motive  of  the  person  guilty  of  it  is  immaterial; 
it  matters  not  that  there  was  no  intention  to  cheat 
or  injure  the  person  to  whom  the  statement  was 
made. — Derry  v.  Peek,  255. 

Present  intention,  as  well  as  present  ability,  to 
use  violence  against  the  person  of  another,  neces- 
sary to  constitute  criminal  assault. — Chapman  v. 
State,  70. 

Words  accompanying  menacing  acts  and  indi- 
cating that  there  is  no  intent  to  do  actual  violence 
may  be  considered  on  the  question  whether  such 
acts  constitute  an  assault.— State  v.  Crow,  72. 

For  a  conviction  of  mayhem  for  an  injury  during 
a  conflict,  it  is  not  necessary  that  the  accused 
should  have  formed  the  intent  before  engaging  in 
the  conflict.— Barholt  v.  Wright,  74. 


JOINT  TENANCY  AND   TEN- 
ANCY IN  COMMON. 

Trespass  is  maintainable  by  one  tenant  in  com- 
mon against  another,  upon  an  actual  ouster. — 
Murray  v.  Hall,  157. 

Sale' and  delivery,  by  one  tenant  in  common  of 
personal  property,  of  the  entire  property  as  exclu- 
sively his  own,  is  a  conversion,  for  which  his  co- 
tenant  can  maintain  trover. — Weld  v.  Oliver,  202. 

JOINT  TORT-FEASORS. 

Personal  privilege  from  civil  action  of  one  of 
two  joint  wrong-doers  does  not  exempt  the  other 
from  liability. —Rice  v.  Coolidge,  13. 

No  apportionment  of  damages  between. — Keegan 
V.  Hayden,  68. 

No  contribution  between  in  respect  of  damages 
for  an  act  which  the  party  must  be  presumed  to 
have  known  to  be  unlawful. — Armstrong  County 
V.  Clarion  County,  68. 

JUDGES. 

Judges  of  courts  of  superior  or  general  jurisdic- 


acts,  even  when  such  acts  are  in  excess  of  their 
jurisdiction,  and  are  alleged  to  have  been  done 
maliciously  or  corruptly;  although  there  is  no 
such  exemption  where  there  is  clearly  no  jurisdic- 
tion over  the  subject-matter,  and  such  want  of 
jurisdiction  is  known  to  the  judge. — Bradley  v. 
Fisher,  206. 

Where  a  court  has  power  to  make  an  order  strik- 
ing the  name  of  an  attorney  from  the  roll  of  attor- 
neys practicing  in  the  court,  error  in  not  citing  the 
attorney,  before  making  such  an  order,  to  show 
cause  why  it  should  not  be  made,  however  it  may 
affect  the  validity  of  the  act,  does  not  make  it  any 
the  less  a  judicial  act,  nor  does  it  render  the  judge 
making  the  order  liable  in  damages  to  the  attor- 
ney, as  though  the  court  had  proceeded  without 
jurisdiction. — Bradley  v.  Fisher,  206. 

Judge  not  liable  to  action  for  false  imprisonment 
for  awarding  a  capias  upon  aflidavits  which  do 
not  disclose  a  sufficient  cause  for  arrest. — Fischer 
v.  Langbein,  92. 

JUDGMENT. 

Where  interest,  not  given  by  the  verdict,  is  in- 
serted in  the  judgment,  without  authority,  the 
proper  remedy  is  by  motion  to  correct  the  judg- 
ment and  not  by  appeal. — Leonard  v.  Columbia 
Steam  Nav.  Co.,  265. 

Any  person  not  a  party  to  a  former  action  and 
not  in  privity  with  a  party  may,  in  a  collateral  ac- 
tion, impeach  the  judgment. —Rice  v.  Coolidge,  15, 


JURISDICTION. 

Power  of  court  to  entertain  jurisdiction  of  an 
action  or  proceeding  does  not  depend  upon  the  ex- 
istence of  a  substantial  cause  of  action,  but  upon 
the  performance  by  the  party  of  the  prerequisites 
authorizing  it  to  determine  whether  one  exists  or 
not. — Fischer  v.  Langbein,  90. 

Order  or  process  based  on  a  decision  of  the  court, 
involving  the  exercise  of  the  judicial  function,  al- 
though afterwards  set  aside  as  erroneous,  is  not 
void,  and  does  not  subject  the  party  procuring  it 
to  an  action  for  damages  thereby  inflicted. — Fischer 
V.  Langbein,  90, 

Public  officer  not  liable  to  civil  action  for  a  judi- 
cial determination,  however  erroneous  or  mali- 
cious, if  he  had  jurisdiction  of  the  case,  and  was 
authorized  to  determine  it. — Bradley  v.  Fisher^ 
206;  Weaver  v.  Devendorf,  211. 


JUSTIFICATION. 

Self-defense  a  justification  of  assault  and  bat- 
tery.— Scribner  v.  Beach,  75;  Commonwealth  v. 
O'Malley,  77;  Commonwealth  v.  Donahue,  77. 

In  civil  actions  for  libel,  proof  of  the  truth  of  the 
matter  charged  as  defamatory  is  a  complete  justi- 
fication, without  showing  that  it  was  published 
with  good  motives,  and  for  justifiable  ends, — Castl© 
v.  Houston,  132. 

The  truth  of  the  charge  that  a  man  had  the  ve- 
nereal disease  is  a  j  ustification,in  an  action  for  slan- 
der by  speaking  words  imputing  such  charge. — 
Golde'rman  v.  Stearns,  116. 

The  truth  of  the  charge,  for  making  which  an  ac- 
tion of  slander  is  brought,  not  admissible  in  justi- 
fication, under  the  general  issue. — Van  Ankin  v. 
Westfall,  114, 

The  speaking  of  defamatory  words  is  justified 
by  a  privileged  occasion  therefor,  although  the 
communication  was  made  voluntarily,  if  it  was 
made  in  good  faith,  without  malice,  in  the  honest 
belief  of  its  truth,  and  under  the  conviction  that  it 
was  a  duty  to  make  it,— Fresh  v.  Cutter,  138. 


KNOWLEDGE. 

To  support  an  action  of  deceit  for  making  a  false 
representation,  knowledge  by  defendant  of  its 
falsity  is  not  always  necessary. — Deri-y  v.  Peek, 


tion  not  liable  to  civil  actions  for  their  judicial  i  249;  Litchfield  v.  Hutchinson,  257. 


IXDEX. 


283 


LACHES. 

May  be  a  bar  to  equitable  relief  against  nuisance. 
-Campbell  v.  Seaman,  164. 


LANDLORD  AND  TENANT. 

Owner  of  building  letting  rooms  in  it,  with  right 
to  tenant  to  go  upon  roof  of  extension  to  dry 
clothes,  not  liable  for  injuries  to  visitor  of  tenant 
received  by  falling  from  window  of  latter's  rooms 
through  unprotected  sky-lightinroof  of  extension. 
— Miller  v.  Woodtiead,  4. 

Failure  of  owner  of  tenement-house  to  comply 
with  statute  requii-ing  fire-escapes  to  be  provided 
therefor  is  a  breach  of  duty  for  which  he  is  liable 
to  a  tenant  for  damages  thereby  caused  to  the  lat- 
ter.—Willy  V.  MuUedy,  16. 

Owner  of  premises  having  so  constructed  a  cess- 
pool thereon  tliat  the  offensive  matter  deposited  in 
it  by  his  tenants  necessarily  percolates  through  to 
the  adjoining  premises  is  liable  equally  with  the 
tenautsfor  the  injury  to  the  adjoining  occupant. — 
Fow  V.  Roberts,  181. 

A  tenant  for  years,  who  restores  a  nuisance  to  a 
right  of  way  after  the  same  has  been  abated,  is  lia- 
ble therefor,  although  the  same  existed  befoi-e  his 
tenancy;  but  merely  repairing  it  after  it  was  in- 
jured, but  not  abated,  will  not  make  him  liable,  if 
it  does  not  become  more  of  a  nuisance  thereby. — 
McDonough  v.  Gilman,  182. 

A  tenant  for  years  is  not  liable  for  keeping  a  nui- 
sance as  it  was  used  before  his  tenancy  com- 
menced, in  the  absence  of  a  request  to  remove  it, 
if  he  does  no  new  act  of  itself  amounting  to  a  nui- 
sance.— McDonough  v.  Gilman,  182. 

The  notice  to  a  tenant,  to  remove  a  nuisance 
whie-h  is  kept  by  him  in  the  manner  in  which  it 
existed  when  his  tenancy  commenced,  without  any 
act  on  his  part  amounting  in  itself  to  a  nuisance, 
must  be  clear  and  unequivocal,  to  make  him  liable 
for  the  continuance.— McDonough  v.  Gilman,  1S2. 

The  owner  of  personal  property  leased  to  anoth- 
er cannot  maintain  trover  for  a  conversion  pend- 
ing the  demise. — Gordon  v.  Harper,  201. 

LANDMARK. 

Removal,  when  made  a  statutory  offense,  in- 
volves moral  turpitude. — Young  v.  Miller,  111. 


LATERAL  SUPPORT. 

Owner  of  land  injured  by  removal  of  lateral  sup- 
port by  adjoining  owner  may  recover  from  him  for 
loss  of  or  injury  to  the  soil,  but  not  for  injury  to 
house  built  thereon,  where  no  right  has  been  ac- 
quired bj'  prescription. — Thurston  v.  Hancock,  23; 
Smith  V.  Thackerah,  30. 

Lease. 

See  Landlord  and  Tenant. 


LEGAL  RIGHTS. 

Violation  necessary  to  constitute  tort. — Guest  v. 
Reynolds,  1;  Miller  v.  Woodhead,  4;  Gramlich  v. 
Wurst,  5;  Rich  v.  New  York  Cent.  &  H.  R.  R.  Co., 
60. 

No  right  of  action  for  negligence  unless  there  is 
a  violation  of  legal  duty.— Larmore  v.  Crown  Point 
Iron  Co.,  219. 

Violation  of  moral  right  or  duty  does  not  consti- 
tute tort.— Guest  v.  Reynolds,  1;  Miller  v.  Wood- 
head,  4;  Gramlich  v.  Wurst,  5. 

May  be  established  by  common  law,  in  cases  of 
novel  impression. — Western  Counties  Manure  Co. 
V.  Lawes  Chemical  Manure  Co.,  11;  Rice  v.  Cool- 
idge,  13. 

Action  maintainable  for  violation  of  legal  rights 
created  by  statute.— Willy  v.  Mulledy,  16. 


Lex  Loci. 

See  Conflict  of  Laws. 

LIBEL. 

Action  may  be  maintainable  for  publishing  de- 
famatory words  by  writing  or  printing,  although 
they  would  not  have  been  actionable  if  spoken 
merely. — Tillson  v.  Robbins,  124;  Moore  v.  Fran- 
cis, 127. 

Action  maintainable  for  the  publication,  by 
writing  or  printing,  of  a  charge  such  as,  if  be- 
lieved, would  naturally  tend  to  expose  a  person  to 
public  hatred,  contempt,  or  ridicule,  or  to  deprive 
him  of  the  benefits  of  public  confidence  and  social 
intercourse,  without  allegations  of  special  damage, 
or  of  any  fact  to  make  such  publication  import  a 
charge  of  crime.— Tillson  v.  Robbins,  124. 

Publication  in  a  newspaper  of  a  statement  im- 
puting insanity  to  a  teller  in  a  bank,  libelous  per 
se,  as  tending  to  injure  him  in  his  employment. — 
Moore  v.  Francis,  126. 

Action  not  maintainable  for  a  publication  in  a 
newspaper  of  a  notice  to  the  public  that  a  saloon- 
keeper, to  get  rid  of  a  just  claim  in  court,  set  up 
as  a  defense  an  existing  prohibitoi-y  liquor  law, 
under  which  no  action  for  the  price  of  liquors  sold 
in  violation  of  the  provisions  thereof  could  be 
maintained.— Homer  v.  Engelhardt,  128. 

Where  a  letter,  containing  defamatory  matter,  is 
dictated  by  the  author  to  a  clerk,  who  takes  it 
down  in  short-hand,  and  then  writes  it  out  in  full 
by  means  of  a  type-writing  machine,  and  the  let- 
ter thus  written  is  copied  by  another  clerk  in  a 
cop3'ing-press,  there  is  a  publication  of  the  letter 
to  both;  and  the  occasion  is  not  privileged. — Pull- 
man V.  Walter  Hill  &  Co.,  131. 

And  where  such  letter,  addressed  to  a  firm,  is 
sent  by  the  author  in  an  envelope  addressed  to  the 
firm,  and  is  opened  by  a  clerk  of  the  firm,  in  the 
ordinary  course  of  business,  and  read  by  other 
clerks  of  the  firm,  there  is  a  publication  of  the  let- 
ter to  such  clerks ;  and  the  occasion  is  not  privi- 
leged.—Pullman  V.  Walter  Hill  &  Co.,  131. 

It  is  not  a  legal  excuse  that  defamatory  matter 
was  published  accidentally  or  inadvertently  or 
with  good  motives,  and  in  an  honest  belief  in  its 
truth. — Moore  v.  Francis,  128. 

In  civil  actions,  proof  of  the  truth  of  the  matter 
charged  as  defamatory  is  a  complete  justification, 
without  showing  that  it  was  published  with  good 
motives,  and  for  justifiable  ends. — Castle  v.  Hous- 
ton, 132. 

The  rule  is  not  changed  by  the  provision  of  the 
constitution  of  Kansas  (Bill  of  Rights,  §  11)  that, 
"in  all  civil  or  criminal  actions  for  libel,  the  truth 
may  be  given  in  evidence  to  the  jury,  and,  if  it 
shall  appear  that  the  alleged  libelous  matter  was 
published  for  justifiable  ends,  the  accused  party 
shall  be  acquitted ; "  as  the  requirement  of  proof 
that  the  matter  was  published  for  justifiable  ends, 
in  order  that  "the  accused  party  shall  be  acquit- 
ted, "  was  limited  to  criminal  prosecutions. — Id. 

As  to  libelous  charges  in  pleadings,  affidavits, 
or  other  papers  used  in  the  course  of  the  prosecu- 
tion or  defense  of  an  action,  the  privilege  is  abso- 
lute, however  malicious  the  intent,  or  however 
false  the  charge  may  have  been.— Moore  v.  Manu- 
facturers' Nat.  Bank,  14.o. 

But  the  privilege  does  not  extend  to  slanderous 
publications  plainly  irrelevant  and  impertinent, 
voluntarily  made,  and  which  the  party  making 
them  could  not  reasonably  have  supposed  to  be  rel- 
evant.— Moore  v.  Manufacturers'  Nat.  Bank,  145. 

Confidential  advice  or  communication  to  persons 
asking  therefor,  or  having  a  right  to  expect  it,  not 
ground  for  action  of  libel  unless  malice  in  fact  be 
shown. — Bromage  v.  Prosser,  12'.l. 

A  libelous  letter  to  an  unmarried  woman  con- 
cerning her  suitor,  not  written  at  her  request,  but 
appearing  to  have  been  written  at  the  instance  of 
mutual  friends,  for  the  purpose  of  preventing  her 
marriage  to  him,  is  not  privileged  by  reason  of 
previous  friendship,  nor  by  reason  of  a  request 
made  four  years  before,  and  before  the  acquaint- 
ance of  the  suitor  was  made,  for  information  of 


284 


INDEX. 


anything  known  to  the  writer  concerning  any 
young  man  the  person  addressed  "went  with,"  or 
any  young  man  in  the  place. — Byam  v.  Collins,  139. 

Information  given  to  the  governor  of  the  state 
for  the  purpose  of  influencing  his  action  on  a  bill 
which  has  passed  the  legislature  is  prima  facie 
privileged,  but  if  the  communication  contains  de- 
famatory matter,  and  is  unnecessarily  published 
to  others,  such  publication  is  not  privileged. — 
"Woods  V.  Wiman,  144. 

Proprietors  of  a  mercantile  agency,  whose  busi- 
ness is  collecting  and  communicating  to  subscrib- 
ers information  as  to  the  character,  credit,  and  pe- 
cuniary responsibility  of  merchants,  are  liable  for 
a  false  and  injurious  i-eport  of  the  failure  of  cer- 
tain merchants,  published  and  circulated  among 
all  the  subscribers;  as  such  a  communication  is 
privileged  only  when  made  in  good  faith,  to  one 
having  an  interest  in  the  information. — Sunderlin 
V.  Bradstreet,  142. 

That  such  libelous  statement  was  in  cipher,  un- 
derstood by  the  subscribers  only,  is  not  a  defense 
to  an  action  for  libel. — Sunderlin  v.  Bradstreet, 
142. 

Whether  a  libelous  communication  is  privileged 
is  a  matter  of  law. — Byam  v.  Collins,  139. 

In  a  civil  action  for  libel  in  the  state  of  New 
York,  where  the  publication  is  admitted,  and  the 
words  are  unambiguous,  the  question  of  libel  or 
no  libel  is  one  of  law,  which  the  court  must  decide. 
— Moore  v.  Francis,  126. 

Qaerii,  whether  lunatic  is  liable  for  libel. — Mo- 
rain  V.  Devlin,  51,  note. 

See  Slandei: 


LICENSE. 

If  the  owner  of  land  sells  chattels  theron,  the  ven- 
dee thereby  obtains  an  implied  license  to  enter  on 
the  premises  and  remov^e  the  property ;  and  such 
license  is  not  revocable. — Newkirk  v.  Sabler,  151; 
Giles  V.  Simonds,  157. 

A  verbal  contract  by  the  owner  of  land  for  the 
sale  of  trees  standing  thereon,  to  be  cut  and  re- 
moved by  the  purchaser,  gives  the  latter  an  im- 
plied license  to  enter  for  that  purpose ;  but  such 
license  is  revocable  at  any  time,  except  as  to  an 
entry  for  the  purpose  of  removing  trees  cut  before 
the  revocation. — Giles  v.  Simonds,  157. 

Legal  license  conferred  by  process  to  enter  house 
for  purpose  of  service  on  person  within  the  house. 
— Hager  v.  Danforth,  81. 

The  abuse  of  a  license  to  enter  premises  given 
bylaw  makes  the  party  a  trespasser  ab  initio;  but 
otherwise  where  the  license  to  enter  was  by  the 
person  in  possession. — Six  Carpenters'  Case,  155. 

Hj  landlord  to  tenant  to  go  upon  roof  adjoining 
demised  premises  for  purpose  of  drying  clothes, 
does  not  extend  to  visitor  to  tenant  not  using  the 
roof  for  such  purpose. — Miller  v.  Woodhead,  4. 

Duty  of  keeping  premises  in  a  safe  condition, 
even  as  to  a  mere  licensee,  may  arise  where  af- 
firmative negligence  in  the  management  of  the 
propei'ty  or  business  of  the  owner  would  be  likely 
to  subject  the  licensee  to  great  danger. — Larmore 
V.  Crown  Point  Iron  Co.,  220. 


LIEN. 

Action  maintainable  for  tortious  acts  by  which 
lien  of  creditor  on  property  of  debtor  is  destroyed 
or  defeated. — Lamb  v.  Stone,  10,  11. 


LIGHT  AND  AIR. 

Not  subjects  of  property  beyond  moment  of  act- 
ual occupancy. — Guest  v.  Reynolds,  1. 

Obstruction  of  access  by  owner  of  adjoining  land 
not  ground  of  action  unless  adverse  right  thereto 
has  been  acquired. — Guest  v.  Reynolds,  1 ;  Thurs- 
ton v.  Hancock,  24. 

English  doctrine  of  prescription  for  easement  of 
light  and  air  not  applicable  in  Illinois. — Guest  v. 
Reynolds.  3. 


LOANS. 

Action  of  trespass  maintainable  by  owner  of  per- 
sonal property  loaned  to  another  for  destruction  of 
it  by  third  person,  while  in  possession  of  borrow- 
er.—White  V.  Brantley,  194. 

One  who,  having  no  knowledge  of  the  ownership 
of  property,  borrows  it  of  a  person  having  pos- 
session thereof,  and,  after  using  it,  returns  it  again 
to  him,  supposing  him  to  be  the  owner,  is  not 
liable  for  a  conversion,  in  an  action  by  the  true 
owner.— Frome  v.  Dennis,  199. 

Under  such  circumstances,  the  failure  of  the 
borrower  to  deliver  the  property  to  the  owner, 
upon  demand  by  him  after  it  has  been  returned  to 
the  lender,  is  not  evidence  of  a  conversion. — Frome 
v.  Dennis,  199. 

Borrower  of  a  carriage  who,  having  received  it 
from  a  livery  stable  where  it  was  stored  for  the 
lender,  returns  it  to  such  livery  stable  after  the 
keeper  of  the  stable  has  ceased'to  be  the  agent  of 
the  lender,  is  liable  to  the  latter  for  a  conversion. 
— Esmay  v.  Fanning,  203. 


Lunatics. 


See  Insanity. 


MACHINERY. 

Leaving  a  dangerous  machine  in  a  public  place 
without  precaution  against  mischief  constitutes 
negligence,  although  the  imprudent  and  unauthor- 
ized act  of  another  may  be  necessary  to  realize 
such  mischief. — Clark  v.  Chambers,  3G. 

MALICE. 

Malice  in  law  is  such  malice  as  is  Inferred  from 
the  commission  of  an  act  wrongful  in  itself,  with- 
but  justification  or  excuse. — Pullen  v.  Glidden,  99. 

Malice  in  fact,  in  a  legal  sense,  denotes  any  un- 
lawful act  done  willfully  and  purposely,  to  the 
prejudice  and  injury  of  another;  it  does  not  neces- 
sarily involve  malevolence  or  ill  will  towards  the 
plaintiff.— Pullen  v.  Glidden,  99. 

Malice,  in  common  acceptation,  means  ill  will 
against  a  person ;  but  in  its  legal  sense  it  means  a 
wrongful  act,  done  intentionally,  without  just 
cause  or  excuse.— Bromage  v.  Prosser,  129. 

Oravamcn  of  action  for  combination  or  conspir- 
acy, l3y  fraudulent  and  malicious  acts,  to  drive  a 
trader  out  of  business,  resulting  in  damages,  is 
the  malice,  not  the  conspiracy. — Van  Horn  v.  Van 
Horn,  109. 

Malice  in  law  is  inferred,  ordinarily,  from  the 
speaking  of  slanderous  words,  wrongfully  and  in- 
tentionally ;  but  where,  on  account  of  the  cause  of 
speaking,'it  is  prima  facie  excusable,  malice  in 
fact  must  be  proved  by  plaintiff. — Bromage  v. 
Prosser,  128. 

Malice  is  implied  as  well  from  oral  as  from  writ- 
ten defamation,  where  the  communication  is  not 
privileged. — Byam  v.  Collins,  139. 

Actual  malice  makes  defamatory  words  actiona- 
ble, although  spoken  on  a  privileged  occasion. — 
Fresh  v.  Cutter,  137. 

Malice  not  necessary  to  sustain  action  for  un- 
true statement  disparaging  goods  of  another,  made 
without  lawful  occasion,  and  causing  him  special 
damage. — Western  Counties  Manure  Co.  v.  Lawes 
Chemical  Manure  Co.,  13. 

A  person  who  maliciously  induces  another  to 
break  a  contract  made  by  the  latter  with  an  em- 
ployer for  his  exclusive  personal  services,  where 
such  bi'each  would  naturally  cause,  and  does,  in 
fact,  cause,  injury  to  the  employer,  is  liable  to  the 
employer  therefor. — Bowen  v.  Hall,  46.  See  Van 
Horn  v.  Van  Horn,  109. 


MALICIOUS  PROSECUTION. 

The  essential  elements  of  an  action  for  malicious 
prosecution  consist  of  a  previous  unfounded  pros- 
ecution of    the  plaintiff    by  the  defendant,  com- 


INDEX. 


285- 


menced  without  probable  cause,  conducted  with 
malice,  and  terminating  favorably  to  the  partj- 
prosecuted. — Miller  v.  Milligan,  98. 

Where  plaintiff  fails  to  show  that  defendant  was 
the  real  prosecutor  in  the  former  suit,  or,  if  so, 
that  he  was  without  evidence  or  circumstances  jus- 
tifying a  reasonable  suspicion  of  the  truth  of  the 
charge,  the  complaint  may  properly  be  dismissed. 
—Miller  v.  Milligan,  98. 

That  the  warrant  upon  which  an  arrest  was 
made  was  void  on  its  face  is  not  available  to  the 
party  arrested  in  an  action  for  malicious  prosecu- 
tion, but  only  in  an  action  for  false  imprisonment. 
— Gelzenleuchter  v.  Niemeyer,  90. 

The  distinction  between  false  imprisonment  and 
malicious  prosecution  is  that  an  imprisonment  un- 
der legal  process,  in  an  action  commenced  and  car- 
ried on  maliciously  and  without  probable  cause,  is 
malicious  prosecution;  and  that  false  imprison- 
ment is  a  trespass  committed  against  a  person  by 
unlawfully  arresting  and  imprisoning  him  without 
any  legal  authority. — Gelzenleuchter  v.  Niemeyer, 
90. 

To  sustain  an  action  for  malicious  prosecution, 
malice  in  fact  must  be  shown,  as  distinguished 
from  malice  in  law,  which  is  established  by  legal 
presumption  from  proof  of  certain  facts. — ^PuUen 
v.  Glidden,  W. 

But  plaintiff  is  not  required  to  prove  "express 
malice,  "  in  the  popular  signification  of  the  term ; 
as,  that  defendant  was  prompted  by  malevolence, 
or  acted  from  motives  of  ill  will,  resentment,  or 
hatred  towards  plaintiff;  it  is  sufQcient  that  he 
prove  malice  in  the  legal  sense,  in  which  an  act 
done  willfully  and  purposely,  to  the  prejudice  and 
injury  of  another,  which  is  unlawful,  is,  as  against 
that  person,  malicious. — PuUen  v.  Glidden,  99. 

Plaintiff  must  prove,  not  only  express  malice  on 
the  part  of  defendant,  but  absence  of  probable 
cause  for  the  prosecution. — Foshay  v.  Ferguson, 
100. 

Want  of  probable  cause  for  the  former  suit  and 
malice  must  concur,  and  the  former  cannot  be  in- 
ferred from  any  degree  of  malice  which  may  be 
shown.— Miller  v.  Milligan,  98. 

One  causing  the  arrest  of  an  innocent  person  on 
a  criminal  charge  is  not  exempted  from  liability 
therefor  by  a  groundless  suspicion,  unwarranted 
by  the  conduct  of  the  accused  or  by  facts  known  to 
the  accuser  when  the  accusation  was  made. — Carl 
v.  Ayers,  94. 

If  defendant,  in  an  action  for  malicious  prosecu- 
tion, had,  at  the  time  he  made  the  criminal  charge 
against  plaintiff  for  which  the  latter  brings  the 
action,  sufbcient  grounds  for  believing  that  plain- 
tiff was  guilty  of  the  offense  charged,  such  prob- 
able cause  is  a  defense  to  the  action,  although  the 
defendant  may  previously  have  agreed  with  plain- 
tiff not  to  prosecute,  and  the  complaint  may  have 
been  afterwards  made  from  a  malicious  feeling 
towards  plaintiff. — Foshay  v.  Ferguson,  100. 

Action  maintainable  for  prosecution  of  civil  ac- 
tion maliciously  and  without  probable  cause;  at 
least,  where  there  has  been  deprivation  of  liberty 
or  taking  of  propertv. — Cardival  v.  Smith,  102; 
Pope  v.  Pollock,  104;  Bump  v.  Betts,  107. 

Action  maintainable  for  maliciously,  and  with- 
out probable  cause,  instituting  and  prosecuting  an 
action  in  forcible  entry  and  detainer,  under  the 
Ohio  statute,  that  proceeding  being  summary  in 
its  character,  and  capable  of  becoming,  when 
wrongfully  prosecuted,  excessively  annoying  and 
harassing. — Pope  v.  Pollock,  104. 

Where  a  proceeding  by  attachment  against 
property  is  brought  in  the  absence  of  the  defend- 
ant therein,  iind  he  has  no  opportunity  to  defend, 
a  termination  of  the  proceeding  in  his  favor  need 
not  be  shown  to  sustain  an  action  by  him  for  ma- 
licious prosecution  thereof;  a  judgment  against 
him,  under  such  circumstances,  is  not  conclusive 
evidence  of  probable  cause  or  want  of  malice,  as 
in  cases  of  personal  service  of  process. — Bump  v. 
Betts,  107. 

Failure  of  plaintiff  in  civii  action,  after  procur- 
ing arrest  of  defendant  on  the  writ  therein,  to 
have  the  writ  returned,  or  to  appear  at  the  court 
to  which  it  is  returnable,  is  a  final  determination 
of  the  action,  such  that  the  defendant  may  main- 


tain an  action  for  malicious  prosecution. — Cardival 
V.  Smith,  102. 

Entry  of  nolle  prosequi  to  an  indictmen*,  by 
leave  of  court,  on  motion  of  the  public  prosecutor, 
made  after  consultation  v/ith  andljy  the  request  of 
the  party  on  whose  complaint  the  indictment  was 
found,  is  such  a  termination  of  the  criminal  charge 
as  will  sustain  an  action  by  the  accused  for  ma- 
licious prosecution. — Moulton  v.  Beecher,  103. 

Proof  that  defendant  in  an  action  for  malicious 
prosecution  submitted  all  the  facts  of  the  case 
which  he  knew  were  capable  of  proof  fairly  to  his 
counsel,  and  acted  bona  ftde  on  the  advice  given, 
negatives,  if  not  the  malice,  the  want  of  probable 
cause,  even  though  the  facts  did  not  warrant  the 
advice  and  the  prosecution. — Walter  v.  Sample, 
101. 

Action  for  malicious  abuse  of  process  in  order 
illegally  to  compel  a  party  to  give  up  his  property 
may  be  sustained  without  showing  that  the  pre- 
vious action,  in  which  the  process  was  improperly 
employed,  has  been  determined,  or  that  the  pro- 
cess was  sued  out  without  reasonable  or  probable- 
cause. — Grainger  v.  Hill,  107. 

MARRIAGE. 

Action  maintainable  for  words  spoken  of  plain- 
tiff by  defendant,  whereby  a  contract  of  marriage 
between  plaintiff  and  another  person  was  broken 
off  by  the  latter,  although  such  words  are  not  in 
themselves  actionable,  and  although  plaintiff  has 
a  remedy  against  such  other  person  for  breach  of 
the  contract. — Moody  v.  Baker,  44. 

See  Husband  and  Wife. 

MASTER  AND  SERVANT. 

Employer  required  to  exercise  reasonable  care 
in  providing  safe  machinery  and  appliances  for 
the  use  of  his  servant. — Larmore  v.  Crown  Point 
Iron  Co.,  220:  Pantzarv.  Tilly  Foster  Min.  Co.,  242. 

Master  cannot  delegate  the  performance  of  these 
duties  to  a  superintendent  or  other  employe,  so  as 
to  exonerate  himself  from  liability  to  a  servant 
who  has  been  injured  bv  their  non-performance. — 
Pantzar  v.  Tilly  Foster  Min.  Co.,  242. 

The  rule  that  the  servant  takes  the  risk  of  the 
service  presupposes  that  the  master  has  performed 
the  duties  of  care,  caution,  and  vigilance  which 
the  law  casts  upon  him. — Pantzar  v.  Tillv  Foster 
Min.  Co.,  24-i. 

One  employed  by  a  mining  company  in  con 
structing  a  wall  in  its  mine,  who  is  ignorant  of  the 
unsafe  condition  of  an  overhanging  rock,  and 
whose  duties  do  not  call  him  to  any  place  from 
which  its  condition  could  be  observed,  is  not 
censurable  for  an  omission  to  observe  the  danger 
in  time  to  avoid  it;  but  the  company,  having  no- 
tice of  the  danger,  and  failing  to  adopt  proper 
means  of  protection,  is  liable  for  an  injury  to  the 
employe  from  the  fall  of  the  rock. — Pantzar  v. 
Tilly  Foster  Min.  Co.,  242. 

A  person  in  the  employ  of  another,  charged  with 
specific  duties,  does  not,  while  in  the  performance 
of  such  duties,  assume  the  risk  of  injury  from  a 
vicious  animal  kept  by  the  employer,  which  he  is 
informed  will  be  kept  fastened.— Muller  v.  Mc- 
Kesson, 191. 

The  act  of  a  workman  on  a  railroad  in  riding  on 
the  pilot  of  an  engine  instead  of  in  the  car  provid- 
ed for  workmen,  although  he  was  informed  of  the 
danger  of  doing  so,  is  negligence  on  his  part,  con- 
tributing to  his  injury  by  a  collision  of  the  engine 
with  cars  standing  on  the  track,  sufficient  to  de- 
feat a  recovery  by  him  against  tbe  railroad  com- 
pany therefor. — Baltimore  &  P.  R.  Co.  v.  Jones, 
223. 

Master  not  liable  to  servant  for  injury  caused 
by  negligence  of  fellow-servant,  where,  although 
the  immediate  objects  on  which  the  two  servants 
are  employed  are  very  dissimilar,  yet  the  risk  of 
negligence  of  the  one  is  so  much  a  natural  and 
necessary  consequence  of  the  employment  which 
the  other  accepts  that  it  must  be  included  in  the 
risks  which  have  to  be  considered  in  his  wages. — 
Morgan  v.  Vale  of  Keath  Ry.  Co.,  244. 


286 


INDEX. 


Wherever  an  employment  in  the  service  of  a 
railway  company  is  such  as  necessarily  to  bring 
the  person  accepting  it  into  contact  with  the  traffic 
of  the  line,  risk  of  injury  from  the  carelessness  of 
those  managing  the  traffic  is  one  of  the  risks  nec- 
essarily and  naturally  incident  to  such  employ- 
ment, and  within  the  rule. — Morgan  v.  Vale  of 
Neath  Ry.  Co.,  244. 

A  carpenter,  employed  by  a  railway  company  to 
do  any  carpenter's  work  for  its  general  purposes, 
and  who,  while  standing  on  a  scaffolding  at  work 
on  a  shed  close  to  the  line  of  the  railway,  is  thrown 
down  and  injured  by  negligence  of  porters  in  the 
service  of  the  company  in  shifting  an  engine  on  a 
turn-table  so  that  it  strikes  a  ladder  supporting 
the  scaffold,  cannot  recover  damages  therefor  from 
the  company.— Morgan  v.  Vale  of  Neath  Ry.  Co., 
244. 

Action  maintainable  by  master  against  one  who 
entices  away  his  servant,  although  he  has  a  rem- 
edy against  the  servant  upon  the  contract  of  em- 
ployment.— Moody  V.  Baker,  45. 

Action  maintainable  by  the  employer  in  a  con- 
tract for  the  exclusive  personal  services  of  the  em- 
ploye against  a  third  person,  who  maliciously  in- 
duces the  employe  to  break  the  contract,  where 
such  breach  causes,  as  a  natural  and  probalDle  con- 
sequence, injury  to  the  employer,  although  the  re- 
lation between  the  parties  to  the  contract  may  not 
be  strictly  that  of  master  and  servant. — Bowen  v. 
Hall,  46. 

A  master  is  responsible  civiliter  for  the  wrong- 
ful act  of  his  servant  causing  injury  to  a  third  per- 
son, whether  the  act  was  one  of  negligence  or  pos- 
itive misfeasance,  if  it  was  done  by  the  servant 
while  acting  for  the  master,  and  within  the  scope 
of  the  business  intrusted  to  him. — Rounds  v.  Del- 
aware, L.  &  W.  R.  Co.,  237. 

The  master  is  liable  for  a  conversion  by  his  ap- 
prentice of  property  taken  by  the  latter  in  the  line 
of  his  employment. — Armory  v.  Delamirie,  201. 

A  servant,  having  received  a  chattel  from  his 
master,  is  not  bound  to  give  it  up  to  another 
claiming  it  as  owner,  without  first  consulting  the 
master;  but  if,  after  having  had  an  opportunity 
to  confer  with  his  master,  he  relies  on  his  master's 
title,  and  absolutely  refuses  to  comply  with  the  de- 
mand, he  will  be  liable  for  a  conversion. — Sioger 
Manuf'g  Co.  v.  King,  205. 

A  railroad  companj-,  having  instructed  its  gate- 
keepers not  to  let  passengers  pass  from  its  trains 
to  the  street  until  they  should  pay  their  fares  or 
show  tickets  therefor,  is  liable  for  false  imprison- 
ment by  a  gate-keeper  of  a  passenger  who  had  lost 
his  ticket. — Lynch  v.  Metropolitan  El.  Ry.  Co.,  86. 

Master  who  authorizes  servant  to  use  force 
against  another,  when  necessary  in  executing  the 
master's  orders,  liable  for  the  use  of  an  unneces- 
sary degree  of  force  by  the  servant,  through  his 
misjudgment  or  violence  of  temper,  giving  a  right 
of  action  to  another. — Rounds  v.  Delaware,  L.  & 
W.  R.  Co.,  237. 

Master  not  liable  for  injury  by  his  servant  to 
another,  done  under  guise  and  cover  of  executing 
the  master's  orders,  but  willfully  and  designedly, 
for  the  purpose  of  accomplishing  his  own  independ- 
ent, malicious,  or  wicked  purposes. — Rounds  v. 
Delaware,  L.  &  W.  R.  Co.,  237. 

One  person  is  not  liable  for  an  injury  caused  by 
the  negligence  of  another  merely  because  the  latter 
was  acting  under  an  employment  by  him,  unless 
such  employment  created  the  relation  of  master  and 
servant  between    them. — Hexamer  v.  Webb,  240. 

Where  a  mechanic  is  employed  by  the  owner  of 
a  building  to  do  work  thereon,  according  to  his  own 
judgment  as  to  what  is  necessary  to  be  done  to  ac- 
complish the  object  intended,  the  mode  in  which 
it  was  to  be  done  and  the  means  to  be  employed 
being  left  entirely  to  him,  and  no  price  being 
fixed,  the  work  being  charged  for  by  the  day,  he 
is  an  independent  contractor,  and  the  owner  is  not 
liable  for  injuries  to  a  third  person  from  the  negli- 
gent construction  of  a  scaffold  used  in  the  work. 
— Hexamer  v.  Webb,  240. 

Giving  character  of  servant  a  privileged  com- 
munication, for  which  action  of  slander  or  libel 
will  not  lie,  unless  malice  in  fact  be  shown. — 
Bromage  v.  Prosser,  129 ;  Fresh  v.  Culter,  136. 


MAXIMS. 

Acta  exteHora  indicant  interlora  ^ecreta. — Six 
Carpenters'  Case,  155. 

Actus  non  facit  reum  nisi  mens  sit  rea.— Bes- 
sey  V.  Olliot,  49. 

Aqua  currit,  et  debet  currere,  ut  currere  sole- 
bat— Webh  V.  Portland  Manuf'g  Co.,  22;  Barkley 
V.  Wilcox,  171;  Clinton  v.  Meyers,  173-175;  Mer- 
rifield  v.  Lombard,  176. 

Caveat  emptor.— Grigsby  v.  Stapleton,  259. 

Cessante  ratione  cessat  ipsa  lex. — Campbell  v. 
Race,  161. 

Ex  damno  sine  injwria  non  oritur  actio. — 
Thurston  v.  Hancock,  23;  Ocean  Grove  Camp 
Meeting  Ass'n  v.  Commissioners  of  Asbury  Park, 
26. 

Nemo  ex  consllio  oblUtatur. — Upton  v.  Vail,  31. 

Sic  utere  tiio  ut  alienum  non  Icedas. — Thurs- 
ton V.  Hancock,  24;  Campbell  v.  Seaman,  164; 
Heeg  v.  Licht,  179. 

The  greater  the  truth,  the  greater  the  libel.— 
Castle  v.  Houston,  133. 

Ubijus  ihi  remediuyn.-Western  Counties  Ma- 
nure Co.  v.  Lawes  Chemical  Manure  Co.,  13. 

Volenti  non  fit  injuria.— Barholt  v.  Wright,  74; 
Hartfield  v.  Roper,  230. 


MAYHEM. 

For  a  conviction  of  mayhem  for  an  injury  during 
a  conflict,  it  is  not  necessary  that  the  accused 
should  have  formed  the  intent  before  engaging  in 
the  conflict. — Barholt  v.  Wright,  74. 

MERCANTILE  AGENCY. 

A  communication,  by  proprietors  of  a  mercan- 
tile agency,  to  their  subscribers,  of  a  report  of  the 
failure  of  certain  merchants,  is  privileged  only 
when  made  in  good  faith,  to  those  having  an  inter- 
est in  the  information. — Sunderlin  v.  Bradstreet, 
143. 

MISTAKE. 

Not  an  excuse  for  trespass.— Hobart v.  Haggett, 
195 ;  Dexter  v.  Cole,  195. 

Nor  for  conversion  of  personal  property. — Esmay 
V.  Fanning,  203. 

MITIGATION. 

The  fact  that  the  injuries  complained  of  were  in- 
flicted in  a  fight  engaged  in  by  the  parties  by  mut- 
ual consent  is  ground  for  mitigation  of  darnages. 
— Barholt  v.  Wright,  74. 

Evidence  of  the  truth  of  the  charge  for  making 
which  an  action  of  slander  is  brought  is  not  ad- 
missible in  mitigation  of  damages. — Van  Ankin  v. 
Westfall,  113. 

Payment  of  proceeds  of  sheriff's  sale  of  goods 
under  an  invalid  levy  not  available  to  him  in  miti- 
gation of  damages  therefor,  being  but  a  continua- 
tion and  aggravation  of  the  original  trespass. — 
Welsh  V.  Wilson,  215. 

MORAL  DUTY. 

Violation  does  not  constitute  a  tort,  unless  a 
legal  right  or  duty  is  violated. — Lamb  v.  Stone,  S. 

Ground  of  privilege  for  making  a  defamatory 
communication. — Byam  v.  Collins,  139. 


MUNICIPAL  CORPORATIONS. 

Cannot  enforce  obedience  to  by-laws  or  ordi- 
nances by  imprisonment,  unless  expressly  author- 
ized to  do  so  by  statute.— Lynch  v.  Metropolitan 
El.  Ry.  Co.,  87. 

Where  the  duty  is  imposed  by  law  upon  a  city 
to  keep  its  sewers  in  repair,  an  omission  to  make 
the  examination  necessary  to  guard  against  an  ob- 
struction or  dilapidation  of  the  sewer,  which  is  an 


INDEX. 


287 


ordinary  result  of  its  use,  and  might  have  been  dis- 
covered on  inspection,  is  a  neglect  of  duty  which 
renders  the  city  liable  for  damages  thereby  caused, 
although  none  of  its  officials  had  notice  that  the 
sewer  was  obstructed  or  out  of  repair. — McCarthy 
V.  City  of  Syracuse.  212. 

NECESSITY. 

Excuse  for  entr^  on  land  of  another. — Newkirk 
V.  Sabler,  151 ;  Proctor  v.  Adams,  159 ;  Campbell  v. 
Race,  160. 

NEGLIGENCE. 

No  right  of  action  for  negligence  unless  there  is 
a  violation  of  legal  dutv. — Larmore  v.  Crown  Point 
Iron  Co.,  211). 

Occupant  of  land  lawfully  making  excavation 
therein  in  ordinary  manner,not  near  highway,  not 
liable  for  injuries  to  trespasser  falling  into  exca- 
vation.— Gramlich  v.  Wurst,  5. 

Leaving  a  dangerous  machine  in  a  public  place 
without  precaution  against  mischief  constitutes 
negligence. — Clark  v.  Chambers,  36. 

A  person  who  goes  upon  the  land  of  another 
without  invitation,  to  secure  employment  from  the 
owner  of  the  land,  is  not  entitled  to  indemnity 
from  such  owner  for  an  injury  happening  from  the 
operation  of  a  defective  machine  on  the  premises, 
not  obviously  dangerous,  which  he  passes  in  the 
course  of  his  journey,  thougfei  he  can  show  that 
the  owner  might  have  ascertained  the  defect  by 
the  exercise  of  reasonable  care,  for  as  to  such  per- 
son there  is  no  violation  of  a  legal  duty. — Larmore 
V.  Ci'own  Point  Iron  Co.,  219. 

Owner  of  dangerous  machinery,  who  leaves  it  in 
an  open  place  on  his  own  land,  not  liable  for  neg- 
ligence because  he  fails  to  take  active  measures  to 
insure  the  safety  of  an  intruder, — at  least  as  to 
one  of  sufficient  mental  capacity  to  be  a  conscious 
trespasser. — Twist  v.  Winona  &  St.  P.  R.  Co.,  226. 

Failure  of  owner  of  tenement-house  to  comply 
with  statute  requiring  tire-escapes  to  be  provided 
therefor  is  a  breach  of  duty,  for  which  he  is  liable 
to  a  tenant  for  damage  therebj'  caused  to  the  lat- 
ter.—Willy  V.  MuUedy,  16. 

Owner  of  building,  letting  rooms  in  it  with  right 
to  tenant  to  go  upon  roof  of  extension  to  dry 
clothes,  not  liable  for  injuries  to  visitor  of  tenant 
received  by  falling  from  window  of  latter's  rooms 
through  unprotected  sky-light  in  roof  of  exten- 
sion.— Miller  v.  W^oodhead,  4. 

As  a  general  principle,  blame  must  be  imputable 
as  a  ground  of  responsibility  for  damage  proceed- 
ing from  a  lawful  act. — Marshall  v.  Welwood,  221. 

A  person  is  not  in  law,  as  a  general  rule,  an- 
swerable for  the  natural  consequences  of  his  acts, 
where  such  acts  are  lawful  in  themselves,  and  are 
done  with  i^rupeicare  and  skill. — Marshall  v.  Wel- 
wood, 221. 

Exceplicnal  safeguards  not  required  where  there 
are  no  exceptional  hazards. — Gramlich  v.  Wurst,  5. 

An  owner  is  not  liable  for  injuries  caused  by  the 
explosion  of  a  steam-boiler  used  by  him  on  his 
premises,  without  pi-oof  of  want  of  due  care  and 
skill  on  the  part  of  him  or  his  agent. — Marshall  v. 
Welwood,  2'.ii. 

It  is  not  enough,  in  order  to  make  one  person 
liable  for  the  negligence  of  another,  to  show  that 
the  person  whose  negligence  caused  the  injury 
was,  at  the  time,  acting  under  an  employment  by 
the  person  who  is  sought  to  be  charged.  It  must 
be  shown,  in  addition,  that  the  emploj^ment  created 
the  relation  of  muster  and  servant  between  them. 
— Hexamer  v.  Webb,  2-10. 

Person  guilty  of  act  of  negligence,  imminently 
dangerous  to  lives  of  others,  is  liable  to  one  injured 
thereby,  whether  there  be  a  contract  between  them 
or  not ;  if  the  act  was  not  so,  the  negligent  party 
is  liable  only  to  the  party  with  whom  he  con- 
tracted, and  on  the  ground  tliat  negligence  is  a 
breach  of  the  contract. — Thomas  v.  Winchester, 

fir. 

No  justification  admissible  where  life  of  one  per- 
*on  has  been  lost  by  negligence  of  another,  whether 


by  negligent  act  or  negligent  omission  of  duty  of 
the  latter. — Thomas  v.  Winchester,  66. 

Lunatic  liable  for  negligence  in  permitting  tene- 
ment-house to  be  in  defective  condition. — Morain 
V.  Devlin,  50. 

Action  ifor  personal  injuries  from  dangerous  ob- 
struction in  the  highvvaj-  maintainable  against  per- 
son who  unlawfully  placed  it  there,  although  the 
immediate  cause  of  the  injury  was  the  intervening 
act  of  another. — Clark  v.  Chambers,  32. 

Where  a  person's  own  negligence  or  want  of  or- 
dinary care  and  caution  so  far  contributes  to  an 
injury  to  himself  that  but  for  such  negligence  or 
want  of  ordinary  care  and  caution  on  his  own  part 
the  injury  would  not  have  happened,  he  cannot  re- 
cover therefor.— Baltimore  &  P.  R.  Co.  v.  Jones, 
223. 

Negligence  of  a  plaintiff,  exposing  his  property 
to  injury,  will  not  preclude  his  recovery  of  dam- 
ages from  a  person  whose  subsequent  negligence 
actually  causes  injury  to  the  property,  if  the  lat- 
ter's negligence  is  the  proximate  cause  of  such  in- 
jury.—Davies  V.  Mann,  225. 

Owner  of  tenemeut-nouse,  who  has  failed  to  pro- 
vide fire-escapes  therefor,  as  required  by  statute, 
is  not  relieved  from  liability  for  damage  thereby 
caused  to  a  tenant,  by  the  fact  that  the  tenant  had 
occupied  the  premises  for  a  few  days  previous  to 
the  fire  causing  the  damage. — Willy  v.  Mulledy, 
16. 

Action  not  maintainable  for  injury  to  plaintiff 
from  a  blow  by  negligence  of  defendant,  if  plain- 
tiff was  also  chargeable  with  negligence  contribut- 
ing as  an  efficient  cause  to  the  injury. — Brown  v. 
Kendall,  51. 

A  postmaster  is  not  liable  for  the  loss  of  a  letter 
occasioned  by  the  negligence  or  wrongful  conduct 
of  his  clerk,  appointed  and  sworn  as  required  by 
law,  though  selected  by  him,  and  subject  to  his 
orders. — Keenan  v.  Sou'thworth,  214:. 

Negligence  cannot  be  imputed  by  law  to  a  per- 
son in  his  effort  to  save  the  life  of  another  in  ex- 
treme peril,  unless  made  under  such  circumstances 
as  to  constitute  rashness  in  the  judgment  of  pru- 
dent persons. — Eckert  v.  Long  Island  R.  Co.,  236. 

Doctrine  of  contributory  negligence  does  not  ap- 
ply to  cases  of  commission  of  intentional  wrong. — 
Barholt  v.  Wright,  74. 

A  child  of  such  tender  years  as  to  be  incapable 
of  exercising  judgment  and  discretion  cannot  be 
charged  with  coutributorv  negligence. — Twist  v. 
Winona  &  St.  P.  R.  Co.,  226. 

But  even  a  child  is  bound  to  use  such  reasonable 
care  as  one  of  his  age  and  mental  capacity  is  capa- 
ble of  using,  and  his  failure  to  do  so  is  negligence. 
—Twist  V.  AVinoi,a  &  St.  P.  R.  Co.,  226. 

A  child  of  tender  years  is  chargeable  with  neg- 
ligence of  the  person  having  him  in  charge. — Hart- 
field  V.  Roper,  228.  Contra,  Newman  v.  Phillips- 
burg  Horse-Car  R.  Co.,  231. 

A  child  two  years  old,  permitted  by  his  parents 
to  be  in  the  beaten  track  of  the  highway  with  no 
one  near  him,  cannot  recover  for  injuries  from  be- 
ing run  over  by  the  horses  of  a  person  driving 
thereon,  unless  the  injuries  were  voluntarily  in- 
flicted bj'  or  were  the  result  of  gross  carelessness 
of  the  traveler. — Hartfield  v.  Roper,  228. 

A  child  two  years  ot  age  who,  while  under  the 
care  of  an  adult  sister,  goes  upon  the  track  of  a 
horse  railroad,  and  is  there  run  over  by  the  care- 
lessness of  the  driver  of  a  car  thereon,  is  not  de- 
prived of  a  right  of  action  for  the  injurj%  although 
the  sister's  carelessness  of  supervision  was,  in 
part,  the  cause  of  the  injury. — Newman  v.  Phil- 
lipsburg  Horse-Car  R.  Co.,  231. 

The  negligence  of  the  person  in  charge  of  a  pub- 
lic conveyance  cannot  be  imputed  to  a  passenger 
therein  who  is  injured  by  the  joint  negligence  of 
such  persons,  and  those  in  charge  of  another  con- 
veyance, to  defeat  his  action  ag  inst  the  latter. 
Thorogood  V.  Bryan,  8  C.  B.  115,  and  Armstrong  v. 
Railroad  Co.,  L.  R.  10  Exch.  47,  overruled. — Mills 
V.  Armstrong,  233,  (The  Bcrnina,)  Id. 

In  an  action  for  a  personal  injury  to  plaintiff  by 
a  blow  inflicted  unintentionally  by  "defendant  while 
doing  a  lawful  act,  the  burden  is  on  plaintiff  to 
show  that  defendant  is  chargeable  with  some  fault, 


288 


INDEX. 


negligence,  carelessness,  or  want  of  prudence. — 
Brown  v.  Kendall,  53. 

What  constitutes  ordinary  care  varies  with  cir- 
cumstances,— Brown  v.  Kendall.  52. 

Negligence  is  a  question  for  the  court,  where 
there  is  no  conflict  of  testimony,  and  the  stand- 
ards by  which  human  conduct  is  to  be  governed 
in  cases  of  like  impression  with  that  before  the 
court  have  been  judicially  defined. — Gramlich  v. 
Wurst,  7. 

It  is  a  question  for  the  jury,  where  measure  of 
duty  is  ordinary  and  reasonable  care,  and  standard 
of  degree  of  care  shifts  with  circumstances,  or 
where  essential  facts  are  controverted. — Gramlich 
V.  Wurst,  7. 

NEGOTIABLE    INSTRUMENTS. 

One  to  whom  a  promissory  note  is  delivered  by 
the  payee  to  be  negotiated,  with  instructions  not 
to  part  with  the  possession  of  it  without  receiving 
the  money,  and  who  delivers  the  note  to  a  third 
person  under  the  promise  of  the  latter  to  get  it 
discounted  and  return  the  proceeds,  is  liable  to  the 
payee,  as  for  a  conversion  of  the  note,  for  the  loss 
by  the  appropriation  of  the  proceeds  of  the  note 
by  such  third  person.— Laverty  v.  Snethen,  197. 

NOISE. 

The  right  to  make  a  noise  for  a  proper  purpose 
must  be  measured  in  reference  to  the  degree  of 
annoyance  which  others  may  reasonably  be  re- 
quired to  submit  to,  which  is  to  be  determined,  in 
connection  with  the  importance  of  the  business, 
by  the  effect  of  noise  upon  people  generally. — Rog- 
ers V.  Elliott,  177. 

A  use  of  property  which  is  objectionable  solely 
on  account  of  the  noise  which  it  makes  is  a  nui- 
sance, if  at  all,  by  reason  of  its  effect  upon  the 
health  or  comfort  of  those  who  are  within  hearing. 
—Rogers  v.  Elliott,  176. 

Ringing  the  bell  of  a  church,  built  upon  a  public 
street  in  a  thickly-settled  part  of  a  town,  in  such 
manner  as  to  materially  affect  the  health  or  com- 
fort of  all  in  the  vicinity,  whether  residing  or  pass- 
ing there,  constitutes  a  public  nuisance. — Rogers 
V.  Elliott,  177. 

NOMINAL  DAMAGES. 

Recoverable  for  wanton  and  unnecessary  injury 
to  land  in  the  use  of  an  easement  therein,  although 
no  particular  amount  of  damages  is  proved. — Dixon 
V.  Clow,  18;  Webb  v.  Portland  Manuf'g  Co.,  19. 


NOTICE. 

Notice  or  request  to  remove  a  nuisance  must  be 
given  to  occupant  of  premises  on  which  it  exists, 
before  an  entry  thereon  by  another  to  abate  it,  if 
it  is  merely  continued  by  such  occupant  as  alienee 
of  the  premises,  and  he  was  not  himself  the  wrong- 
doer by  having  created  the  nuisance  or  neglected 
to  perform  some  obligation  by  the  breach  of  which 
it  was  created. — Jones  v.  Williams,  189. 


NOXIOUS  VAPORS. 

An  injury  to  property  by  noxious  vapors  arising 
on  the  land  of  another,  to  be  actionable,  must  be 
such  as  visibly  to  diminish  the  value  of  the  prop- 
erty, and  the  comfort  and  enjoyment  of  it;  and,  in 
determining  that  question,  the  time,  locality,  and 
all  the  circumstances  should  be  taken  into  consid- 
eration.— St.  Helen's  Smelting  Co.  v.  Tipping,  168. 

An  action  for  such  an  injury  may  be  maintained, 
although  the  business  by  the  operation  of  which  it 
is  caused  is  a  necessary  trade,  and  the  place  is  a 
suitable  place  for  such  a  trade,  and  it  is  carried  on 
in  a  reasonable  manner. — St.  Helen's  Smelting  Co. 
V.  Tipping,  168. 

The  destruction  of  ornamental  and  useful  trees 
and  vines  by  the  vapors  and  gases  from  a  brick- 


kiln is  such  irreparable  injury  as  a  court  of  equity- 
will  enjoin. — Campbell  v.  Seaman,  164. 

Annoyance  caused  by,  not  ground  of  action  un- 
less damage  of  appreciable  amount  is  shown. — 
Smith  V.  Thackerah,  30. 

NUISANCE. 

The  unreasonable,  unwarrantable,  or  unlawful 
use  of  one's  own  property,  producing  material  an- 
noyance, inconvenience,  discomfort,  or  hurt  to  his 
neighbor,  constitutes  a  nuisance.  —  Campbell  v. 
Seaman,  164. 

Annoyance  to  habitation  or  estate  may  consti- 
tute a  nuisance. — Guest  v.  Reynolds,  2. 

Obstruction  of  view  or  light  does  not  constitute 
a  nuisance. — Guest  v.  Reynolds,  3. 

The  burning  of  brick  in  a  kiln,  which  produces 
noxious  gases,  injuring  another's  property,  is  a 
nuisance,  though  brick-burning  is  a  useful  and 
necessary  industry. — Campbell  v.  Seaman,  164. 

An  injury  to  property  by  noxious  vapors  arising 
on  the  land  of  another,  to  be  actionable,  must  be 
such  as  visibly  to  diminish  the  value  of  the  prop- 
erty, and  the  comfort  and  enjoyment  of  it;  and,  in 
determining  that  question,  the  time,  locality,  and 
all  the  circumstaaces  should  be  taken  into  consid- 
eration.— St.  Helen's  Smelting  Co.  v.  Tipping,  168. 

An  action  for  such  an  injury  may  be  maintained, 
although  the  business  by  the  operation  of  which 
it  is  caused  is  a  necessary  trade,  and  the  place  is  a 
suitable  place  for  such  a  trade,  and  it  is  carried  on 
in  a  reasonable  manner. — St.  Helen's  Smelting  Co. 
v.  Tipping,  168. 

The  pollution  of  a  stream  of  water  so  as  to  pre- 
vent the  use  of  it  for  any  of  the  reasonable  and 
proper  purposes  to  which  running  water  is  usual- 
ly applied  is  an  infringement  of  the  rights  of  oth- 
er riparian  owners,  and  ci'eates  a  nuisance  which 
will  be  enjoined  at  the  suit  of  those  injured. — Mer- 
rifield  v.  Lombard,  175. 

A  use  of  property  which  is  objectionable  solely 
on  account  of  the  noise  which  it  makes  is  a  nui- 
sance, if  at  all,  by  reason  of  its  effect  upon  the 
health  or  comfort  of  those  who  are  within  hear- 
ing.— Rogers  v.  Elliott,  176. 

The  right  to  make  a  noise  for  a  proper  purpose 
must  be  measured,  in  reference  to  the  degree  of 
annoyance  which  others  may  reasonably  be  re- 
quired to  submit  to,  which  is  to  be  determined,  in 
connection  with  the  importance  of  the  business, 
by  the  effect  of  noise  upon  people  generally. — 
Rogers  v.  Elliott,  177. 

The  mere  keeping  of  gunpowder  in  dangerous 
proximity  to  the  premises  of  another  is  a  nuisance, 
rendering  the  person  keeping  it  liable  for  injuries 
caused  by  its  explosion,  irrespective  of  the  ques- 
tion of  his  negligence.— Heeg  v.  Licht,  178. 

A  dog  accustomed  to  bite  persons  is  a  public 
nuisance,  and  may  be  killed  by  any  one  when 
found  running  at  large. — MuUer  v.  McKesson,  191. 

A  scaffold  suspended  from  the  roof  of  a  build- 
ing, for  the  purpose  of  making  repairs  thereto,  not 
over  the  line  of  the  sidewalk,  is  not  within  the 
meaning  of  a  city  ordinance  forbidding  the  hang- 
ing of  any  goods,  wares,  and  merchandise,  or  any 
other  thing,  in  front  of  any  building. — Hexamer  v. 
Webb,  240. 

A  scaffold,  constructed  by  suspending  a  lad- 
der from  the  roof  of  a  building,  for  the  purpose 
of  making  improvements  thereon,  the  building  be- 
ing 15  feet  from  the  line  of  the  sidewalk,  is  not 
per  se  a  nuisance. — Hexamer  v.  Webb,  240. 

An  act  of  the  legislature, which  directs  or  allows 
that  to  be  done  which  would  otherwise  be  a  nui- 
sance, is  valid,  unless  it  can  fairly  be  said  to  be  an 
unwholesome  and  unreasonable  law. — Sawyer  ▼. 
Davis,  186. 

Legislature  may  authorize  use  of  bells,  whistles, 
etc.,  by  emplojers  for  purpose  of  giving  notice  to 
their  workmen,  under  regulation  of  municipal  au- 
thorities, although  thereby  injury  is  caused  to  in- 
dividuals, such  as  a  court  of  equity  would  restrain. 
— Sawyer  v.  Davis,  186. 

A  statute  which  authorizes  a  thing  to  be  done 
which  can  be  done  without  creating  a  nuisance  will 
not  be  deemed  to  authorize  a  nuisance. — Sawyer  v. 
Davis,  186. 


INDEX. 


289 


A  person  cannot,  by  erecting  a  nuisance  upon 
his  land  adjoining  vacant  land  owned  by  another, 
conti'ol  or  lessen  the  latters  use  of  the  land,  un- 
less he  can  acquire  such  right  by  prescription. — 
Campbell  v.  Seaman,  ltJ4. 

If  the  right  invaded  or  impaired  by  an  alleged 
nuisance  is  a  common  and  public  one,  a  mere  dep- 
rivation or  obstruction  of  the  use,  which  excludes 
or  hinders  all  persous  alike,  and  does  not  cause 
any  special  or  peculiar  damage  to  any  one,  fur- 
nishes no  valid  cause  of  action  to  an  individual, 
although  he  may  suffer  inconvenience  or  delay 
greater  in  degree  than  others  from  the  alleged  ob- 
struction or  hindrance. — Wesson  v.  Washburn 
Iron  Co.,  1S4. 

But  an  alleged  nuisance  which  injures  private 
property,  or  the  health  or  comfort  of  an  individual, 
is  in  its  nature  special  and  peculiar,  and  is  action- 
able, though  it  is  committed  in  a  manner  and  un- 
der circumstances  which  would  render  the  guilty 
party  liable  to  an  indictment  for  a  common  nui- 
sance.— Wesson  v.  Washburn  Iron  Co.,  184. 

A  person  may  recover  for  injuries  to  his  prem- 
ises caused  by  noise,  smoke,  and  noxious  vapors 
in  the  operation  of  another's  rolling-mills,  though 
many  other  persons  in  the  same  neighborhood  are 
injured  in  the  same  way. — Wesson  v.  Washburn 
Iron  Co.,  184. 

A  person  who,  by  reason  of  a  sunstroke,  is  pe- 
culiarly susceptible  to  the  noise  caused  by  the  ring- 
ing of  a  church  bell,  situated  directly  opposite  his 
house  in  a  thicklj'-populated  district,  cannot,  in 
the  absence  of  evidence  of  express  malice,  or  that 
the  bell  was  objectionable  to  persons  of  ordinary 
health  and  sti-ength,  maintain  an  action  against 
the  custodian  of  such  church  for  sufferings  caused 
by  the  ringing  of  such  bell. — Rogers  v.  Elliott,  176. 

Persons  who,  without  authority,  make  or  con- 
tinue a  covered  excavation  in  a  public  street  or 
highway  for  a  private  purpose,  are  liable  for  all 
injuries  to  individuals  resulting  from  the  street  or 
highway  being  thereby  less  safe  for  its  appropri- 
ate use,  irrespective  of  the  question  of  negligence. 
— Congreve  v.  Smith,  180. 

That  the  injuries  were  caused  by  the  negligence, 
in  covering  the  excavation,  of  servants  of  con- 
tractors for  that  work,  who  had  contracted  to  do  it 
properly,  does  not  relieve  from  liability  the  per- 
sons who  procured  it  to  be  done,  and  did  not  ob- 
ject to  it,  and  continued  the  excavation  in  its  un- 
safe condition,  they  being  bound,  at  their  peril,  to 
make  and  at  all  times  keep  the  street  as  safe  as  it 
would  have  been  if  the  excavation  had  not  been 
made. — Congreve  v.  Smith,  180. 

The  landlord  or  grantor  who  has  created  a  nui- 
sance is  himself  liable,  notwithstanding  his  lease 
or  grant,  for  the  continuance  of  the  nuisance  by 
his  lessee  or  grantee. — McDonough  v.  Gilman,  182. 

Action  for  nuisance  does  not  lie  against  a  gran- 
tee of  the  premises,  unless,  after  request  made  to 
abate  it,  he  does  not  remove  the  nuisance. — Mc- 
Donough v.  Gilman.  183. 

Where  a  cess-pool  is  so  constructed  by  the  own- 
er of  the  premises  that  the  offensive  matter  depos- 
ited therein  by  his  tenants  necessarily  percolates 
through  to  the  adjoining  premises,  the  owner  is 
equally  liable  with  the  tenants  for  the  injury  to  the 
adjoining  occupant. — Fow  v.  Roberts,  181. 

A  tenant  for  years,  who  restores  a  nuisance  to  a 
right  of  way  after  the  same  has  been  abated,  is  lia- 
ble therefor,  although  the  same  existed  before  his 
tenancy;  but  merely  repairing  it  after  it  was  in- 
jured, but  not  abated,  will  not  make  him  liable,  if 
it  does  not  become  more  of  a  nuisance  thereby. — 
McDonough  v.  Gilman,  182. 

A  tenant  for  years  is  not  liable  for  keeping  a  nui- 
sance as  it  was  used  before  his  tenancy  com- 
menced, in  the  absence  of  a  request  to  remove  it, 
if  he  does  no  new  act  of  itself  amounting  to  a  nui- 
sance.—McDonough  V.  Gilman,  182. 

The  notice  to  a  tenant  to  remove  a  nuisance 
which  is  kept  by  him  in  the  manner  in  which  it 
existed  when  his  tenancy  commenced,  without  any 
act  on  his  part  amounting  in  itself  to  a  nuisance, 
must  be  clear  and  unequivocal,  to  make  him  liable 
for  the  continuance. — McDonough  v.  Gilman,  1^2. 

Entry  on  land  of  another  to  abate  a  nuisance 
thereon,  without  previous  x-equest  or  notice  to  the 

CHASE — li) 


occupant  to  remove  it,  not  justifiable  in  the  casa 
of  a  nuisance  merely  continued  by  such  occupant 
as  alienee  of  the  premises,  where  he  was  not  him- 
self the  wrong-doer  by  having  created  the  nui- 
sance or  neglected  to  perform  some  obligation  by 
the  breach  of  which  it  was  created. — Jones  v. 
Williams,  189. 

He  who  undertakes  to  abate  a  nuisance  proceeds 
at  his  peril,  taking  the  risk  of  being  able  to  show 
that  the  thing  complained  of  was  in  fact  a  nui- 
sance; if  he  errs  in  judgment,  he  is  answerable  in 
damages;  if  a  breach  of  the  peace  is  involved, 
he  is  liable  to  indictment. — Crosland  v.  Borough  of 
Pottsville,  190. 

Where  a  person  entitled  to  a  limited  right  exer- 
cises it  in  excess,  so  as  to  produce  a  nuisance,  it 
may  be  abated  to  the  extent  of  the  excess;  and,  if 
the  nuisance  cannot  be  abated  without  obstructing 
the  right  altogether,  the  exercise  of  the  right  may 
be  entirely  stopped  until  means  have  been  taken  to 
reduce  it'  within  its  proper  limits. — Crosland  v. 
Borough  of  Pottsville,  190. 

The  writ  of  injunction  is  not  a  matter  of  grace, 
but  of  right,  in  a  proper  case,  and  will  be  granted 
to  restrain  irreparable  injury,  whether  it  be  to 
the  enjoyment  of  the  necessities  or  the  luxuries  of 
life. — Campbell  v  Seaman,  164. 

Acts  of  an  upper  riparian  proprietor,  in  so  con- 
ducting his  business  as  to  permit  poisonous  and 
corrosive  substances  to  run  into  the  stream  by 
which  the  machinery  of  a  lower  proprietor  is  cor- 
roded and  destroyed,  will  be  restrained,  as  tending 
to  create  a  nuisance  of  a  continuous  character. — 
Merrifield  v.  Lombard,  175. 


OBSTRUCTING  PROCESS. 

Officer  justified  in  using  force  necessary  to  over- 
come unlawful  resistance  to  process. — Hager  v. 
Danforth,  81. 

OCCUPYING  CLAIMANTS. 

Occupant  of  land  under  color  of  title  making  in 
good  faith  valuable  improvements  thereon,  and 
having  by  statute  a  right  to  compensation  for  his 
improvements  if  he  should  be  judicially  found  not 
to  be  the  rightful  owner  thereof,  may  "recover  for 
willful  or  negligent  destruction  of  his  improve- 
ments notwithstanding  proof  that  title  to  land  is 
in  another. — Milwaukee  &  St.  P.  Ry.  Co.  v.  Kel- 
logg, 41. 

OFFENSIVE  TRADES. 

Offensive  odors  ground  of  action  for  nuisance. — 
Guest  V.  Reynolds,  2. 

Carrying  "on  a  business,  although  a  lawful  trade, 
which  of  itself  produces  inconvenience  and  injury 
to  others,  as  being  offensive  to  the  senses  and  ren- 
dering the  enjoyment  of  life  and  property  uncom- 
fortable, may  constitute  a  nuisance;  it  is  not  nec- 
essary that  it  should  endanger  the  health  of  the 
neighborhood.— Heeg  v.  Licht,  178. 

See  Noxioxis  Vapors. 

OFFICERS. 

Public  officer  serving  process  justified  in  using 
force  necessary  to  overcome  unlawful  resistance. 
— Hager  v.  Danforth,  81. 

Protected  from  action  for  making  arrest,  al- 
though warrant  is  void,  if  regular  on  its  face. — 
Rice  v.  Coolidge,  14. 

Warrant  regular  on  its  face  is  sufficient  authori- 
ty to  a  constable  to  make  the  arrest  commanded 
therein,  although  he  has  knowledge  of  facts  which 
render  the  warrant  void  for  want  of  jurisdiction. 
— People  V.  Warren,  216. 

Not  protected  in  making  arrest  by  warrant  void 
on  its  face. — Gelzenleuchter  v.  Niemeyer,  88. 

Officer  has  no  power  to  arrest,  without  a  war- 
rant, for  a  past  offense,  not  a  felony,  upon  infor- 
mation or  suspicion  thereof. — Quinn  v,  Heisel,  d& 


290 


INDEX. 


Arrest  by  ofiQcer  without  a  warrant  is  not  justi- 
fied by  a  threat  or  other  indication  of  a  breach  of 
the  peace  unless  the  facts  warrant  a  belief  that 
the  arrest  is  necessary  to  prevent  the  commission 
of  the  offense,  without  reference  to  any  past  simi- 
lar offense  of  which  the  person  may  have  been 
guilty  before  the  officer's  arrival. — Quinn  v.  Heisel, 
96. 

Words  not  in  themselves  actionable  may  be  ac- 
tionable as  causing  special  damage,  when  spoken 
of  one  holding  a  public  oflSce,  by  exposing  him  to 
the  hazard  of  losing  his  office;  but  no  action  can 
be  maintained  for  such  words  spoken  after  the 
office  had  expired. — Forward  v.  Adams,  116. 

When  a  duty  is  imposed  by  statute  upon  a  pub- 
lic officer,  any  person  having  a  special  interest  in 
the  performance  thereof  may  sue  for  a  breach 
thereof  causing  him  damage. — Willy  v.  MuUedy, 
16. 

Public  officer  not  liable  to  civil  action  for  judi- 
cial determination,  however  erroneous  or  mali- 
cious, if  he  had  jurisdiction  of  the  case  and  was 
authorized  to  determine  it. — Bradley  v.  Fisher, 
206;  Weaver  v.  Devendorf,  211. 

Assessors  of  taxes  act  judicially  in  fixing  the 
value  of  taxable  property,  where  it  is  not  sworn 
to  as  authorized  by  law,  and  they  are  not  liable  to 
a  civil  action  by  one  over  whose  person  and  prop- 
erty they  had  jurisdiction  for  the  purpose  of  as- 
sessment, for  failing  to  make  any  allowance  or  de- 
duction on  account  of  an  exemption  of  a  certain 
amount  to  which  he  was  entitled,  or  for  assessing 
his  property  at  a  higher  rate  than  that  of  others. 
— Weaver  v.  Devendorf,  211. 

Where  the  duty  is  imposed  by  law  on  the  mayor 
and  common  council  of  a  city  to  make  and  repair 
sewers  in  the  city,  the  duty  of  determining  where 
sewers  shall  be  located  and  their  dimensions  is,  in 
its  nature,  judicial,  and  an  entire  omission  to  con- 
struct a  sewer,  or  a  failure  to  make  it  of  sufficient 
capacity,  creates  no  liability  on  the  part  of  the  city. 
— McCarthy  v.  City  of  Syracuse,  212. 

But  where  a  sewer  has  been  determined  upon 
and  is  constructed,  the  duties  of  constructing  it 
properly  and  keeping  it  in  good  condition  and  re- 
pair are  ministerial,  and  negligence  in  the  per- 
formance of  these  duties  will  render  the  city  liable 
for  damages  resulting  therefrom. — McCarthy  v. 
City  of  Syracuse,  212. 

A  sheriff  or  constable  who,  under  an  execution, 
seizes  and  sells  property  not  belongingto  the  judg- 
ment debtor,  though  in  his  possession,  is  a  mere 
trespasser,  and  liable  to  an  action  by  the  owner  of 
the  property  without  any  demand  before  suit. — 
Boulware  ^.  Craddock,  214. 

Levy  of  execution  by  breaking  outer  door  of 
dwelling  of  execution  debtor  invalid,  and  the  fact 
that  the  sheriff  making  such  levy  sold  the  goods 
and  paid  the  proceeds  to  the  execution  creditor  is 
not  available  to  him  in  mitigation  of  damages. — 
Welsh  V.  Wilson,  215. 

A  postmaster  is  not  liable  for  the  loss  of  a  letter 
occasioned  by  the  negligence  or  wrongful  conduct 
of  his  clerk,  appointed  and  sworn  as  required  by 
law,  although  selected  by  him  and  subject  to  his 
orders. — Keenan  v.  Southworth,  214. 


OPINION. 

A  statement  by  a  warehouseman  in  a  circular 
soliciting  patronage  that  the  exterior  of  his  ware- 
house is  fire-proof  is  the  statement  of  a  matter 
of  fact,  not  a  mere  expression  of  opinion,  and  if 
made  by  him  with  knowledge  that  it  was  false, 
and  with  intent  to  deceive,  a  person  induced  there- 
b}'  to  store  in  the  warehouse  property  which  is  de- 
stroyed by  fire  communicated  to  portions  of  the 
exterior  which  are  not  fire-proof,  may  recover 
from  the  warehouseman  for  the  loss  so  incurred. 
—  Hickey  v.  Morrell,  2(i0. 

Statements  amounting  merely  to  expressions  of 
opinion  not,  in  general,  ground  of  action  for  fraud; 
but  where  they  are  to  be  regarded  as  affirmations 
of  fact,  then,  if  false,  an  action  can  be  maintained 
on  them. — Hickey  v.  Morrell,  262. 

See  Expert  Testimony. 


PARENT  AND  CHILD. 

Corporal  punishment  of  child  by  parent  in  a  rea- 
sonable manner  justifiable. — Sheehan  v.  Sturges, 
81. 

Action  maintainable  by  father  for  seduction  of 
minor  daughter,  although  at  the  time  she  is  in  the 
employ  of  and  residing  with  another,  without  any 
intention  to  return  to  her  father,  if  the  father  has 
not  relinquished  his  legal  right  to  her  services. — 
Mulvehall  v.  Millward,  218. 

PASSAGE-WAY. 

Using  violence  to  another  to  force  a  passage,  in 
a  rude,  inordinate  manner,  or  any  struggle  about 
a  passage  to  a  degree  that  may  do  hurt,  is  a  bat- 
tery.— Cole  V.  Turner,  72. 

Obstruction  in  one  direction  only,  leaving  the 
way  open  in  another  direction,  not  an  imprison- 
ment.—Bird  V.  Jones,  82. 


PASSENGERS. 

Regulation  by  a  railroad  company  that  a  passen- 
ger, who  fails,*before  leaving  its  trains  or  prem- 
ises, to  produce  a  ticket  or  pay  his  fare,  shall  be 
detained  until  he  does  so,  is  illegal. — Lynch  v.  Met- 
ropolitan El.  Ry.  Co.,  86. 

May  be  expelled  by  railroad  company  from  its 
train  for  wanton  refusal  to  comply  with  rule  re- 
quiring surrender  of  tickets  od  the  train. — Illinois 
Cent.  R.  Co.  v.  Whittemore,  79;  Lynch  v.  Metro- 
politan EL  Ry.  Co.,  87. 

Detention  of  passenger  by  carrier,  for  the  pur- 
pose of  enforcing  payment  of  fare,  illegal. — Lynch 
v.  Metropolitan  El.  Ry.  Co.,  86. 

PERJURY. 

Rule  that  there  can  be  no  conviction  of  perjury 
on  unaided  testimony  of  one  witness  is  applicable 
only  to  criminal  proceedings. — Rice  v.  Coolidge, 
15. 

One  who  suborns  witnesses  to  swear  falsely  to 
defamatory  statements  concerning  another,  in  a 
suit  to  which  neither  of  them  is  a  party,  is  liable 
to  an  action  therefor  by  the  person  whose  charac- 
ter is  so  defamed.— Rice  v.  Coolidge,  13. 

PHYSICIANS. 

To  say  of  a  physician,  in  regard  to  his  treatment 
of  children  not  over  three  years  of  age,  that  he 
killed  them  by  giving  them  teaspoonful  doses  of 
calomel,  is  actionable  per  se,  as  imputing  to  him 
gross  ignorance  of  his  profession ;  damage  being 
presumed  from  the  nature  of  the  charge. — Secor 
v.  Harris,  119. 

PLEADING. 

Where  injury  to  plaintiff  is  the  natural  and  nec- 
essary consequence  of  the  acts  charged  in  his  dec- 
laration, special  damages  need  not  be  alleged. — 
Rice  V.  Coolidge,  13. 

Allegations,  in  the  same  count  of  a  declaration, 
that  defendants  procured  and  suborned  several 
witnesses  to  testify  falsely  to  defamatory  matter 
concerning  plaintiff,  do  not  set  forth  more  than 
one  cause  of  action,  where  the  different  acts  are 
alleged  to  have  been  all  parts  of  one  scheme. — Rice 
V.  Coolidge,  13. 

Recovery  must  be  on  proof  of  allegations,  not  of 
an  independent  cause  of  action. — Guest  v.  Rey- 
nolds, 3. 

POISONS. 

Dealer  in  medicines,  selling  as  a  harmless  rem- 
edy a  poison  of  similar  appearance,  liable  for  inju- 
ries caused  thereby  to  a  patient  to  whom  it  was 
administered,  although  there  was  no  privity  be- 
tween them. — Thomas  v.  Winchester,  65. 


INDEX. 


291 


POLICE  POWER. 

Legislature  may  authorize  use  of  bells,  whistles, 
etc.,  by  employers  for  purpose  of  giving  notice  to 
their  workmen,  under  regulation  of  municipal  au- 
thorities, although  thereby  injury  is  caused  to  in- 
dividuals, such  as  a  court  of  equity  would  restrain. 
—Sawyer  v.  Davis,  186. 

POSSESSION. 

Defense  of  possession  of  property  a  justification 
of  assault  and  battery. — Scribner  v.  Beach,  75; 
Commonwealth  v.  Donahue,  77. 

Property  wrongfully  taken  may  be  recovered  by 
use  of  reasonable  force. — Commonwealth  v.  Dona- 
hue, 77. 

The  gist  of  the  action  of  trespass  to  lands  is  the 
injury  to  the  possession,  and  he  only  can  maintain 
the  action  who  either  has  or  is  entitled  to  the  pos- 
session. Where  the  land  is  in  the  actual  and  ex- 
clusive occupation  of  the  owner's  tenant,  the 
owner  cannot  maintain  the  action.— Halligan  v. 
Chicago  &  R.  I.  R.  Co.,  154. 

A  person  cannot  maintain  ti'espass  for  taking 
personal  property,  unless  at  the  time  of  the  taking 
he  had  either  actual  or  constructive  possession  or 
a  right  to  the  immediate  possession.  —  Lunt  v. 
Brown.  196. 

Where  personal  property  is  left  in  the  possession 
of  another  under  an  agreement  for  a  specified 
time,  the  owner  cannot  maintain  trespass  against 
a  third  person  for  taking  such  property  during 
such  time. — Lunt  v.  Brown,  195. 

The  owner  of  a  dog  loaned  by  him  to  another 
may  maintain  trespass  for  the  killing  of  the  dog 
by  a  third  person  while  so  loaned.  Actual  posses- 
sion is  not  necessary  to  the  maintenance  of  the  ac- 
tion.— White  V.  Brantley,  194. 

Trover  will  not  lie  for  the  conversion  of  personal 
property  unless  at  the  time  of  the  conversion  the 
possession  or  right  to  the  immediate  possession 
was  in  plaintift'. — Gordon  v.  Harper,  201. 

PRESCRIPTION. 

Is  founded  upon  presumption  of  former  grant. — 
Thurston  v.  Hancock,  24. 

Easement  of  light  and  air  not  acquired  by  pre- 
scription of  20  years.— Guest  v.  Reynolds,  3;  Mil- 
ler V.  Woodhead,  4. 

Where  the  injury  to  shrubbery  on  plaintiff's 
premises  is  caused  by  the  burning  of  anthracite 
coal  in  a  brick-kiln  on  adjoining  premises  by  de- 
fendant, a  prescriptive  right  to  continue  the  nui- 
sance must  be  based  upon  20  years'  actual  use  of 
such  coal,  and  not  20  years'  use  of  the  kiln.— Camp- 
bell V.  Seaman,  164. 

A  person  cannot,  by  erecting  a  nuisance  upon 
his  land  adjoining  vacant  land  owned  by  another, 
control  or  lessen  the  latter's  use  of  the  land,  unless 
he  can  acquire  such  right  by  prescription. — Camp- 
bell V.  Seaman,  164. 

Tenant  or  owner  not  obliged  to  fence  against  ad- 
joining owner  or  occupier,  at  common  law,  except 
by  prescription ;  and,  in  that  case,  only  against 
cattle  rightfully  in  the  adjoining  close. — Lawrence 
V.  Combs,  163. 

PRESUMPTIONS. 

Common  law  presumed  to  prevail  in  a  state  the 
law  of  which  is  not  proved;  but  no  presumption 
that  the  statutes  of  other  states  are  similar  to 
those  of  the  state  in  which  action  is  pending. — 
Leonard  v.  Columbia  Steam  Nav.  Co.,  26(j. 

The  presumption  of  negligence  or  prima  facie 
liability  of  the  owner  of  a  vicious  animal  by  which 
another  person  is  injured,  arising  from  the  fact  of 
its  vicious  propensity  and  the  owner's  knowledge 
thereof,  cannot  be  rebutted  by  proof  of  any 
amount  of  care  on  the  part  of  the  owner  in  keep- 
ing or  restraining  the  animal. — MuUer  v.  McKes- 
son, 192. 

In  such  a  case  as  the  speaking  of  words  charg- 
ing a  physician  with  gross  ignorance  and  unskill- 


fulness  in  his  profession,  the  presumption  of  dam- 
age being  violent,  and  the  difficulty  of  proving  it 
considerable,  the  law  supplies  the  defect  by  con- 
verting the  presumption  into  proof;  and  damage 
is  presumed  to  result  from  the  speaking  of  the 
words.— Secor  v.  Harris,  119. 

In  an  action  of  trover  for  the  removal  by  defend- 
ant from  a  jewel  of  precious  stones,  the' value  of 
which  is  not  known,  and  which  defendant  does  not 
produce,  the  strongest  presumption  is  against  him, 
and  the  measure  of  damages  is  the  value  of  the 
beststones  that  would  fit  the  socket. — Armory  v. 
Delamirie,  201. 

PRINCIPAL  AND  AGENT. 

Where  an  agent  parts  with  the  property  of  his 
principal  in  a  way  or  for  a  purpose  not  authorized, 
he  is  liable  for  a  conversion;  but  if  he  parts  with 
it  in  accordance  with  his  authority,  although  at  a 
less  price,  or  if  he  misapplies  the  avails,  or  takes 
inadequate  for  sufficient  security,  he  is  not  liable 
for  a  conversion. — Laverty  v.  Suethen,  197. 

An  agent  who,  having  received  a  chattel  from  a 
fellow-employe  with  directions  not  to  deliver  it  to 
the  owner  until  certain  storage  charges  are  paid, 
refuses  to  deliver  it  to  the  owner  on  demand  be- 
cause the  latter  will  not  pay  such  charges,  neither 
he  nor  his  principal  having  any  right  to  impose 
such  a  condition,  is  liable  to  the  owner  for  a  conver- 
sion.—Singer  Manuf'g  Co.  v.  King,  305. 

PRIVACY. 

Action  not  maintainable  for  disturbance  of  pri- 
vacy by  window  overlooking  adjacent  land. — Guest 
v.  Reynolds,  3;  Miller  v.  Woodhead,  4. 

PRIVILEGED  COMMUNICA- 
TIONS. 

Defamatory  words  published,  spoken  in  the 
course  of  judicial  proceedings,  are  not  actionable 
if  they  are  applicable  and  pertinent  to  the  subject 
of  inquiry. — Rice  v.  Coolidge,  14. 

As  to  slanderous  statements  made  by  parties, 
counsel,  or  witnesses  in  the  course  of  judicial  pro- 
ceedings, and  libelous  charges  in  pleadings,  affi- 
davits, or  other  papers  used  in  the  course  of  the 
prosecution  or  defense  of  an  action,  the  privilege 
is  absolute,  however  malicious  the  intent,  or  how- 
ever false  the  charge  may  have  been. — Moore  v. 
Manufacturers'  Nat.  Bank,  145. 

But  the  privilege  does  not  extend  to  slanderous 
publications  plainly  irrelevant  and  impertinent, 
voluntarily  made,  and  which  the  party  making 
them  could  not  reasonably  have  supposed  to  be 
relevant. —  Moore  v.  Manufacturers'  Nat.  Bank, 
145. 

Confidential  advice  or  communication  to  persons 
asking  therefor,  or  having  a  right  to  expect  it,  not 
ground  for  action  of  slander  or  libel  unless  malice 
in  fact  be  shown. — Bromage  v.  Prosser,  129. 

Defamatory  words  are  not  privileged  because 
uttered  in  strictest  confidence  by  one  friend  to  an- 
other, nor  because  they  are  uttered  after  the  most 
urgent  solicitation,  nor  because  the  interview  in 
which  they  are  uttered  is  obtained  at  the  instance 
of  the  person  slandered. — Byam  v.  Collins,  139. 

A  libelous  letter  to  an  unmarried  woman  con- 
cerning her  suitor,  not  written  at  her  request,  but 
appearing  to  have  been  written  at  the  instance  of 
mutual  friends,  for  the  purpose  of  preventing  her 
marriage  to  him,  is  not  privileged  by  reason  of 
previous  friendship,  nor  by  reason  of  a  request 
made  four  years  before,  and  before  the  acquaint- 
ance of  the  suitor  was  made,  for  information  of 
anything  known  to  the  writer  concerning  any 
young  man  the  person  addressed  "went  with,  "or 
any  young  man  in  the  place. — Byam  v.  Collins,  139. 

Information  given  to  the  governor  of  a  state  for 
the  purpose  of  influencing  his  action  on  a  bill 
which  has  passed  the  legislature  is  prima  facie 
privileged ;  but  if  the  communication  contains  de- 
famatory matter,  and  is  unnecessarily  published 


292 


INDEX. 


to  others,  such  puDlication  is  not  privileged.— 
Woods  V.  Wiman,  144. 

A  communication,  by  proprietors  of  a  mercan- 
tile agency,  to  their  subscribers,  of  a  report  of 
the  failure  of  certain  merchants,  is  privileged 
only  when  made  in  good  faith,  to  those  having  an 
interest  in  the  information.— Sunderlin  v.  Brad- 
street,  142. 

S^ee  Libel;  Slander. 

PRIVITY. 

In  cases  of  contract,  where  there  is  no  legal  du- 
ty independent  of  the  contract,  one  not  in  privity 
with  a  party  to  the  contract  cannot  recover  against 
him  in  tort  for  an  injury  involving  a  breach  of  the 
contract.— Win terbottom  v.  Wright,  63. 

Dealer  in  medicines,  selling  as  a  harmless  rem- 
edy a  poison  of  similar  appearance,  liable  for  in- 
juries caused  thereby  to  a  patient  to  whom  it  was 
administered,  although  there  was  no  privity  be- 
tween them. — Thomas  v.  Winchester,  65. 

PROBABLE  CAUSE. 

Probable  cause  is  reasonable  ground  of  suspicion, 
supported  by  circumstances  sufficient  to  warrant 
a  cautious  man  in  the  belief  that  the  person  ac- 
cused is  guilty  of  the  offense  charged. — Foshay  v. 
Ferguson,  100. 

Probable  cause,  which  will  justify  a  criminal  ac- 
cusation, is  a  reasonable  ground  of  suspicion,  sup- 
ported by  circumstances  sufQciently  strong  in 
themselves  to  warrant  a  cautious  man  in  his  be- 
lief that  the  person  accused  is  guilty  of  the  offense 
with  which  he  is  charged.  It  does  not  depend  up- 
on the  guilt  or  innocence  of  the  accused,  or  upon 
the  fact  whether  a  crime  has  been  committed. — 
Carl  v.  Ayers,  95. 

To  sustain  an  action  for  malicious  abuse  of 
process  of  the  court  in  order  illegally  to  compel  a 
party  to  give  up  his  property,  it  need  not  be 
averred  that  the  process  so  improperly  employed 
was  sued  out  without  reasonable  or  probable 
cause. — Grainger  v.  Hill,  107. 

PROCESS. 

Use  of  force  by  officer  necessary  to  overcome 
unlawful  resistance  to  service  of  process  justifi- 
able.— Hager  v.  Danforth,  81. 

Not  lawful  for  officer,  in  order  to  serve  civil 
process,  to  break  open  outer  door  of  dwelling  of 
the  party,  although  such  dwelling  is  also  used  by 
the  party  for  transaction  of  business. — Welsh  v. 
Wilson,  215. 

Breaking  of  inner  door,  by  officer,  to  serve 
process,  justifiable. — Williams  v.  Spencer,  161. 

A  warrant  regular  on  its  face  is  a  sufficient  au- 
thority to  a  constable  to  make  the  arrest  com- 
manded therein,  although  he  has  knowledge  of 
facts  which  render  the  warrant  void  for  want  of 
jurisdiction. — People  v.  Warren,  216. 

Warrant  void  on  its  face  not  a  protection  to 
officer  making  arrest  under  it. — Gelzenleuchter  v. 
Niemeyer,  88. 

Void  process  is  such  as  the  court  has  no  power 
to  award,  or  has  not  acquired  jurisdiction  to  issue 
in  the  particular  case,  or  which  does  not,  in  some 
material  respect,  comply  in  form  with  the  legal 
requisites  of  such  process,  or  which  loses  its  vital- 
ity in  consequence  of  non-compliance  with  a  con- 
dition subsequent,  obedience  to  which  is  rendered 
essential. — Fischer  v.  Langbein,  91. 

Irregular  process  is  such  as  a  court  has  general 
jurisdiction  to  issue,  but  which  is  unauthorized  in 
the  particular  case  by  reason  of  the  existence  or 
non-existence  of  some  fact  or  circumstance  render- 
ing it  improper  in  such  a  case. — Fischer  v.  Lang- 
bein, 91. 

Order  or  process  based  on  a  decision  of  the  court 
involving  the  exercise  of  the  judicial  function, 
although  afterwards  set  aside  as  erroneous,  is  not 
void,  and  does  not  subject  the  party  procuring  it 
to  an  action  for  damages  thereby  inflicted. — Fisch- 
er V.  Langbein,  90. 

Liability  for  arrest  under  void  process  attaches 
when  wrong  is  committed,  without  such  process 


being  vacated  or  set  aside;  but  process  merely  ir- 
regular must  be  vacated  or  annulled  before  an  ac- 
tion can  be  maintained  for  damages  from  its  en- 
forcement.— Fischer  v.  Langbein,  90. 

Arrest  of  right  person  under  wrong  name, 
through  misnomer  in  the  process,  without  an  alle- 
gation that  the  true  name  is  unknown,  is  false  im- 
prisonment.— Gelzenleuchter  v.  Niemeyer,  90. 

One  who  instigates  and  procures  an  officer  to  ar- 
rest another  under  a  void  warrant  is  liable  to  an 
action  therefor,  although  the  officer  is  protected. — 
Rice  V.  Coolidge,  14. 

Action  maintainable  for  malicious  abuse  of  pro- 
cess.— Grainger  v.  Hill,  107. 

Failure  of  plaintiff  in  civil  action  to  have  writ 
returned,  or  to  appear  at  the  court  to  which  it  is 
returnable,  a  final  determination  of  the  action. — 
Cardival  v.  Smith,  102. 

Promissory  Notes. 

See  Negotiable  Instruments. 

PROPERTY. 

Owner  of  land  has  an  absolute  property  in  sur- 
face water  thereon  before  it  leaves  the  land  and 
becomes  part  of  a  definite  water-course. — Barkley 
v.  Wilcox,  172. 

Riparian  owner  has  no  property  in  the  water  of 
the  stream,  but  a  simple  use  of  it  while  it  passes. 
— Clinton  v.  Myers,  173. 

In  subterranean  waters  is  presumed  to  be  in 
owner  of  the  fee. — Ocean  Gi-ove  Camp  Meeting 
Ass'n  V.  Commissioners  of  Asbury  Park,  26. 

Light  and  air  not  subjects  of  property  beyond 
moment  of  actual  occupancy. — Guest  v.  Reynolds,  1. 

Defense  of  property  a  justification  of  an  assault 
and  battery,  unless  unreasonable  force  is  used. — 
Scribner  v.  Beach,  75 ;  Commonwealth  v.  Donahue, 
77. 

The  finder  of  an  article  has  such  a  property 
therein  as  will  enable  him  to  keep  it  as  against  all 
but  the  rightful  owner,  and  he  may  maintain  tro- 
ver for  its  conversion. — Armory  v.  Delamirie,  201. 

The  unreasonable,  unwarrantable,  or  unlawful 
use  of  one's  own  property,  producing  material 
annoyance,  inconvenience,  discomfort,  or  hurt 
to  his  neighbor,  constitutes  a  nuisance. — Camp- 
bell V.  Seaman,  164. 

PROXIMATE    OR   REMOTE 
CAUSE. 

Action  for  tort  not  maintainable  for  remote, 
contingent,  or  indefinite  damages. — Lamb  v. 
Stone,  9,  10;  Clark  v.  Chambers,  33;  Vanden- 
burgh  V.  Truax,  37;  Lowery  v.  Manhattan  Ry.  Co., 
38;  Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  41; 
Moody  V.  Baker,  44;  Bowen  v.  Hall,  46. 

It  seems  that  the  liability  arising  from  unlaw- 
ful acts,  negligence,  or  omissions  of  duty  is  con- 
fined to  those  consequences  only  which,  in  the 
ordinary  course  of  things,  were  likely  to  arise, 
and  which  might  therefore  reasonably  be  ex- 
pected to  arise,  or  which  it  was  contemplated 
by  the  parties  might  arise,  from  such  acts,  neg- 
ligence, or  omissions. — Clark  v.  Chambers,  35. 

One  who  does  an  illegal  or  mischievous  act, 
likely  to  prove  injurious  toothers,  is  answerable 
for  the  consequences  directly  and  naturally  re- 
sulting therefrom,  although  he  did  not  intend  to 
do  the  particular  injury  which  followed. — Van 
denburgh  v.  Truax,  37. 

To  warrant  a  finding  that  negligence,  or  an  act 
not  amounting  to  wanton  wrong,  is  the  proxi- 
mate cause  of  an  injury,  it  must  appear  that  the 
injury  was  the  natural  and  probable  consequence  of 
the  negligence  or  wrongful  act,  and  that  it  ought 
to  have  been  foreseen  in  the  light  of  attendant 
circumstances.  When  there  is  no  intermediate 
efficient  cause,  disconnected  from  the  primary 
fault,  and  self-operating,  which  produced  the 
injury,  the  original  wrone:  must  be  considered 
as  reaching  to  the  effect,  and  proximate  to  it. — 
Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg,  41. 


INDEX. 


293 


Whererer  a  man  does  an  act  which  in  law  and 
in  fact  is  a  wrongful  act,  and  such  an  act  as 
may,  as  a  natural  and  probable  consequence  of 
it,  produce  injury  to  another,  and  which  iu  the 
particular  case  does  produce  such  an  injury,  an 
action  on  the  case  will  lie.  If  these  conditions 
are  satisfied,  the  action  does  not  the  less  lie  be- 
cause the  natural  and  probable  consequence  of 
the  act  complained  of  is  an  act  done  by  a  third 
person,  or  because  such  act  so  done  by  the  third 
person  is  a  breach  of  duty  or  contract  by  him, 
or  an  act  illegal'  on  his  part,  or  an  act  otherwise 
imposing  an  actionable  liability  on  him. — Bowen 
V.  Hall,  47. 

Cancer  of  the  breast,  if  found  to  be  the  result 
of  an  injury  to  plaintiff  caused  by  defendant's 
negligence,  may  be  considered  in  estimating 
damages  in  an  action  for  such  injury. — Baltimore 
City  Pass.  Ry.  Co.  v.  Kemp,  54. 

Where  fire  is  allowed  to  fall  from  a  locomotive 
of  an  elevated  railway  on  a  horse  and  his  driver 
iu  the  street  below,  the  immediate  running  away 
of  the  horse  and  his  collision  with  a  person  on 
the  sidewalk  are  natural  and  probable  conse- 
quences, and  the  wrongful  act  is  the  proximate 
cause  of  the  injury  to  such  person,  notwith- 
standing error  of  judgment  of  the  driver  in  en 
deavoring  to  manage  and  control  the  horse. — Low- 
ery  v.  Manhattan  Ry.  Co.,  38. 

An  insurance  company  has  no  right  of  action 
against  the  person  who  feloniously  or  negligent- 
ly causes  the  death  of  a  person  insured  by  it,  for 
the  loss  thereby  caused  the  company,  such  loss 
being  too  remote  and  indirect. — Mobile  Life  Ins. 
Co.  V.  Brame.  247. 

Action  not  maintainable  by  one  party  to  aeon- 
tract  against  a  third  person  persuading  the  other 
party  to  the  contract  not  to  perform  it. — Mobile 
Life  Ins.  Co.  v.  Brame,  248. 

Action  not  maintainable  by  contractor  for  sup- 
port of  town  paupers  against  a  person  inflicting 
personal  injury  upon  such  a  pauper,  on  the 
ground  that  thereby  the  contractor  was  subjected 
to  extra  expenditure. — Mobile  Life  Ins.  Co.  v. 
Brame,  248. 

"Witness  not  liable  in  damages  for  evidence 
given  by  him  in  a  suit,  although  false,  by  which 
another  is  injured. — Mobile  Life  Ins  Co.  v. 
Brame,  24S. 

Remote  negligence  on  the  part  of  a  plaintilT  is 
no  answer  to  his  action  for  an  injurj-,  tht  proxi- 
mate cause  of  which  is  attributable  to  want  of 
proper  care  on  defendant's  part. — Davies  v. 
Mann,  225. 


PUBLICATION. 

To  sustain  an  action  for  slander,  the  defamato- 
ry words  must  have  been  spoken  in  the  presence 
or  hearing  of  some  person  other  than  the  plain- 
tiff.—Terwilliger  V.  Wands,  124;  Bheffill  v.  Van 
Deusen,  130. 

That  the  words  were  spoken  in  a  public  place 
is  immaterial. — ShefiBll  v.  Van  Deusen,  130. 

Where  a  letter,  containing  defamatory  matter, 
is  dictated  by  the  author  to  a  clerk,  who  takes  it 
down  in  short-hand,  ana  then  writes  it  out  in 
full  by  means  of  a  tj'pe-writing  machine,  and  the 
letter  thus  written  is  copied  by  another  clerk  in 
a  copying-press,  there  is  a  publication  of  the  let- 
ter to  both,  and  the  occasion  is  not  privileged. — 
Pullman  v.   Walter  Hill  &  Co.,  131. 

And  where  such  letter  is  sent  by  the  author  in 
an  envelope  addressed  to  the  firm,  and  is  opened 
by  a  clerk  of  the  firm,  in  the  ordinary  course  of 
business,  and  read  by  other  clerks  of  the  firm, 
there  is  a  cublication  of  the  letter  to  such  clerks, 
and  the  occasion  is  not  privileged. — Pullman  v. 
Walter  Hill  &  Co.,  131. 

Information  given  to  the  governor  of  the  state 
for  the  purpose  of  influencing  his  action  on  a  bill 
which  has  passed  the  legislature  is  prima  facie 
privileged;  but  if  the  communication  contains 
defamatory  matter,  and  is  unnecessarily  pub- 
lished to  others,  such  publication  is  not"  privi- 
leged.—Woods  V.  Wiman,  144. 


PUNISHMENT. 

Of  pupil    by  teacher,  in  a  reasonable   manner, 
justifiable. — Sheehan  v.  iSturges,  80. 


QUESTIONS  OF  LAW  OR  OF 
FACT. 

What  is  the  proximate  cause  of  an  injury  is 
ordinarily  a  question  for  the  jury.— Milwaukee 
&  St.  P.  Ry.  Co.  V.  Kellogg,  43. 

What  is  reasonable  force,  which  may  be 
used  in  retaking  possession  of  property  wrong- 
fully taken  by  another,  is  a  question  of  fact  for 
a  jury. — Commonwealth    v.  Donahue,  77. 

Negligence,  in  ordinary  cases,  a  question  for 
the  jury,  but  may  be  a  question  for  the  court 
where  there  is  no  conflict  of  testimony,  and 
the  standard  of  duty  or  the  rights  of  the  parties 
have  been  judicially  defined. — Gramlich  v. 
Wurst,  7. 

Whether  a  servant,  for  whose  tortious  act  suit 
is  brought  against  his  master,  was,  in  doing  such 
act,  while  apparently  engaged  in  executing  the 
master's  order.'',  in  fact  pursuing  his  own  pur- 
poses, without  reference  to  his  master's  busi- 
ness, and  was  acting  maliciously  and  willfully, 
is  ordinarily  a  question  for  the' jury  on  all  the 
facts  and  circumstances  proved. — Rounds  v.  Del- 
aware, L.  &  W.  R.  Co. ,  237. 

Where,  on  the  evidence  in  an  action  for  slan- 
der for  words  spoken  in  answer  to  an  inquiry,  it 
is  a  question  of  fact  whether  defendant  under- 
stood the  person  making  such  inquiry  as  asking 
for  information  to  regulate  his  own  conduct, 
this  should  be  submitted  to  the  jury  for  consid- 
eration before  thej-  are  to  consider  the  question  of 
malice  in  answering. — Bromage  v.  Pressor,  128. 

In  a  civil  action  for  libel  in  the  state  of  New 
York,  where  the  publication  is  admitted  and 
the  words  are  unambiguous,  the  question  of  libel 
or  no  libel  is  one  of  law,  which  the  court  must 
decide. — Moore  v.  Francis,  126. 

Whether  a  libelous  communication  is  privi- 
leged is  a  question  of  law. — Bvam  v.  Collins, 
139. 

Whether  a  regulation  of  a  railroad  company 
requiring  passengers  to  surrender  their  tickets  be- 
fore leaving  the  trains  is  reasonable  is  a  question 
for  the  court,  either  with  or  without  testimony 
on  the  subject;  to  submit  it  to  the  jury  is  error. 
— Illinois  Cent.  R.  Co.  v.  Whittemore,  79; 
Lynch  v.  Metropolitan  El.  Ry.  Co.,  87. 

The  reasonableness  of  the  punishment  adminis- 
tered by  a  teacher  to  his  pupil  is  purely  a  ques- 
tion of  fact. — Sheehan  v.  Sturges,  60. 


RAILROADS. 

Incidental  injury  to  owner  of  property  near  a 
railroad,  caused  by  the  necessary  noise,  vibra- 
tion, dust,  and  smoke  from  passing  trains,  which 
would  amount  to  an  actionable  nuisance  if  the 
operation  of  the  railroad  were  not  authorized  by 
the  legislature,  must,  if  the  running  of  the  trains 
is  so  authorized,  be  borne  by  the  individual, 
without  compensation  or  remedy  in  any  form. — 
Sawyer  v.  Davis,  186. 

The  act  of  a  workman  on  a  railroad  in  riding 
on  the  pilot  of  an  engine  instead  of  in  the  car 
provided  for  workmen,  although  he  was  informed 
of  the  danger  of  doing  so,  is  negligence  on  his 
p.vt,  contributing  to  his  injury  by  a  collision  of 
the  engine  with  cars  standing  on  the  track,  suflfi- 
cient  to  defeat  a  recovery  by  him  against  the 
railroad  company  therefor. — Baltimore  &  P.  R. 
Co.  V.  Jones,  223. 

The  conduct  of  a  boy  nearly  lOX  years  old,  of 
average  intelligence,  familiar  in  a  general  way 
with  the  working  of  a  railroad  turn-table,  know- 
ing that  it  was  dangerous  to  play  upon  it.  and 
that  so  doing  was  forbidden  by  the  railroad  com- 
pany, and  having  been  warned  by  his  father  not 
to  go  upon  it,  who  nevertheless  engages  with  oth- 


294 


INDEX. 


er  boys  in  swinging  apon  it  while  in  motion,  and 
is  injured  thereby,  is  such  contributory  negli- 
gence as  will  defeat  a  recovery  for  such  injury, 
although  he  may  not  have  been  of  sufBcieat 
age  and  discretion  to  understand  the  full  ex- 
tent of  the  danger. — Twist  v.  Winona  &  St. 
P.  R.  Co.,  226. 

A  person  seeing  a  small  child  on  a  railroad 
track,  in  extreme  peril  from  a  rapidly  approach- 
ing train,  owes  to  the  child  the  duty  to  rescue 
it  if  he  can  do  so  without  incurring  great  danger 
to  himself;  and  the  law  will  not  impute  negli- 
gence to  an  effort  by  him  to  rescue  the  child, 
unless  made  under  such  circumstances  as  to  con- 
stitute rashness,  in  the  judgment  of  prudent  per- 
sons.— Eckert  V.  Long  Island  R.  Co.,  236. 

A  trespasser  upon  the  cars  of  a  railroad  train 
is  entitled  to  be  protected  against  unnecessary 
injury  by  the  railroad  company  or  its  servants 
in  exercising  the  right  of  removing  him. — Rounds 
V.  Delaware,  L.  &.  W.  R.  Co.,  239. 

Wherever  an  employment  in  the  service  of  a 
railway  company  is  such  as  necessarily  to  bring 
the  person  accepting  it  into  contact  with  the 
trafQc  of  the  line,  risk  of  injury  from  the  care- 
lessness of  those  managing  the  trafSc  is  one 
of  the  risks  necessarily  and  naturally  incident 
to  such  employment,  and  within  the  rule. — Mor- 
gan V.  Vale  of  Neath  Ry.  Co.,  244. 

RELIGIOUS  SOCIETIES. 

Loss  of  membership,  with  no  material  advan- 
tages attaching  thereto,  not  such  special  damage 
as  will  sustain  action  for  speaking  words  not  ac- 
tionable in  themselves. — Roberts    v.  Roberts,  28. 


REMEDIES. 

New  remedy  adopted,  to  prevent  failure  of  jus- 
tice or  to  enforce  settled  principles  of  law;  but 
not  where  redress  may  be  had  by  any  of  the  forms 
of  action  already  known  and  practiced. — Lamb 
V.  Stone,    9;  Rice  v.  Coolidge,  13,  15. 

Action  may  be  either  ex  contractu  or  ex  delicto, 
for  breach  of  right  or  duty  created  by  law,  the 
performance  of  which  has  been  assumed  by 
contract. — Baltimore  Citv  Pass.  Ry.  Co.  v.  Kemp, 
54. 

Remote  Damages. 

See  Proximate  or  Remote  Cause. 

RESISTING  PROCESS. 

OflBcer  justified  in  using  force  necessary  to 
overcome  unlawful  resistance  to  process. — flager 
V.  Danforth,  81. 

REVERSIONS. 

Action  maintainable  for  injury  to  reversionary 
right.— Webb  v.  Portland  Manuf'g  Co.,  20. 

Riparian  Rights. 

See  Water-Courses. 

ROOF. 

Of  extension  of  building  with  unprotected  sky- 
light below  windows  of  rooms  let  by  owner,  not 
a  structure  dangerous  to  tenant  of  rooms. — Miller 
V.  Woodhead,  5. 

SALE. 

Where  there  is  a  mistake  between  the  seller 
and  purchaser  as  to  the  article  sold,  the  seller 
supposing  he  has  sold  one  article  while  the  pur- 
chaser supposes  he  has  bought  another,  of  which 


he  takes  possession,  he  will  be  liable  in  trespass. 
— Hobart  v.  Hagget,  195. 

When  an  article  is  offered  for  sale,  a  material 
latent  defect  must  be  disclosed,  or  the  sale  will 
be  avoided. — Grigsby  v.  Stapleton,  259. 

One  who  sells  cattle,  which  he  knows  have  a 
contagious  disease,  not  easily  detected  except  by 
those  acquainted  with  it,  for  a  sound  price,  to  a 
purchaser  having  no  knowledge  of  the  fact,  if 
he  does  not  disclose  the  fact  to  the  purchaser,  is 
guilty  of  fraudulent  concealment  of  a  latent  de- 
fect, which  will  defeat  an  action  for  the  price. 
Under  such  circumstances  the  rule  caveat  emptor 
does  not  apply. — Grigsby  v.  Stapleton,  258. 

When  the  real  quality  of  property  sold  is  ob- 
vious to  ordinary  intelligence,  and  the  vendor 
and  vendee  have  equal  knowledge  or  equal  means 
of  acquiring  information,  and  the  truth  or  falsity 
of  representations  made  by  the  vendor  as  to  its 
quality  may  be  ascertained  by  the  vendee  by  the 
exercise  of  ordinary  inquiry  or  diligence,  and 
they  are  not  made  for  the  purpose  of  throwing 
him  off  his  guard  and  diverting  him  from  mak- 
ing inquiry  and  examination,  which  eveiy  pru- 
dent person  ought  to  make,  the  vendee  has  no 
ground  of  action  for  fraud,  though  he  purchases 
the  property  in  reliance  upon  such  representa- 
tions.— Long  V.  Warren,  263. 

Action  not  maintainable  by  purchaser  of  a 
farm  against  the  vendor  for  false  representations 
by  the  latter,  to  induce  the  purchase,  in  regard 
to  the  absence  of  a  noxious  grass  from  the  farm, 
where  it  appears  that  any  attempt  to  find  such 
grass  on  the  farm,  made  before  the  purchase, 
would  have  disclosed  its  existence. — Long  v.  War- 
ren, 263. 

Representations  made  to  a  father  to  induce  him 
to  purchase  a  gun  for  the  use  of  his  son,  known 
by  the  vendor  making  them  to  be  false,  by  which 
the  son  is  induced  to  use  the  gun,  operate  as  a 
distinct  fraud  on  the  son,  and  he  may  maintain, 
an  action  against  the  vendor  for  injuries  sus- 
tained in  consequence  thereof. — Winterbottom  v. 
Wright,  64. 

SCHOOLS. 

Corporal  punishment  of  pupil  by  teacher  to  en- 
force compliance  with  proper  rules  for  good  con- 
duct and  order  of  school  justifiable,  if  inflicted 
with  sound  discretion  and  judgment,  and  adapted 
to  the  offender  as  well  as  to  the  offense. — Sheehan. 
V.  Sturges,  80. 

In  an  action  against  a  teacher  for  assault  and 
battery  in  whipping  a  pupil,  evidence  of  habit- 
ual misconduct  of  the  pupil  prior  to  the  punish- 
ment is  admissible  on  behalf  of  defendant. — 
Sheehan  v.  Sturges,  80. 

The  reasonableness  of  the  punishment  admin- 
istered by  a  teacher  to  his  pupil  is  purely  a 
question  of  fact. — Sheehan  v.  Sturges,  80. 

SEDUCTION. 

Action  maintainable  by  father  for  seduction  of 
minor  daughter,  although  at  the  time  she  is  in 
the  employ  of  and  residing  with  another,  with- 
out any  intention  to  return  to  her  father,  if  the 
father  has  not  relinquished  his  legal  right  to  her 
services.— Mulvehall  v.  Millward,  318. 

See  Criminal  Conversation. 

SELF-DEFENSE. 

Justifies  assault  and  battery.  —  Scribner  v. 
Beach,  75;  Commonwealth  v.  O'Malley,  77;  Com- 
monwealth V.  Donahue,  77. 


See  Officers. 


Sheriffs. 


SHIPPING. 


Where,  by  a  collision  between  two  steam-ships, 
through  negligence  of  the  masters  and  crews  of 


INDEX. 


295 


both,  a  person  on  board  one  of  them,  having 
nothing  to  do  with  the  negligent  navigation,  is 
drowned,  an  action  may  be  maintained  against 
the  owners  of  the  other  vessel  for  damages  for 
his  death,  under  a  statute  giving  a  right  of  ac- 
tion to  personal  representatives  of  a  deceased 
person  for  injuries  causing  his  death. — Mills  v. 
Armstrong,  233;  The  Bernina,  Id. 

SKY-LIGHTS. 

In  roof  of  extension  of  building,  below  win- 
dows of  rooms  let  by  owner,  not  a  structure  dan- 
gerous to  tenant  of  rooms,  even  after  removal  of 
wire  screen  intended  to  protect  the  glass. —Miller 
V.  Woodhead,  5. 

SLANDER. 

Slanderous  words  are  those  which  (1)  import 
a  charge  of  some  punishable  crime;  or  (2)  im- 
pute some  offensive  disease  which  would  tend  to 
deprive  a  person  of  society;  or  (3)  which  tend 
to  injure  a  party  in  his  trade,  occupation,  or  bus- 
iness; or  (4)  which  have  produced  some  special 
damage. — Moore  v.  Francis,  126. 

Words  imputing  a  criminal  offense  punishable 
corporally  are  actionable  per  se  in  England,  even 
though  such  offense  be  not  punishable  by  indict- 
ment.— Webb  V.  Beavan,  113. 

Words  imputing  a  chai-ge  which,  if  true,  would 
subject  the  party  charged  to  an  indictment  for 
a  crime  involving  moral  turpitude,  or  subject 
him  to  an  infamous  punishment,  are  in  them- 
selves actionable. — Young  v.  Miller,  111. 

Where  the  removal  of  a  landmark  is,  by  stat- 
ute, indictable  as  a  misdemeanor,  and  punisha- 
ble by  line  and  imprisonment  in  the  county  jail, 
as  it  also  involves  moral  tui'pitude,  words  charg- 
ing a  person  with  that  offense  are  actionable  per 
86.— Young  V.  Miller,  111. 

Words  imputing  charge  of  swindling  do  not 
necessarily  imply  a  crime,  and  are  not  actionable 
per  se. — chase  v.  Whitlock,  113. 

Action  maintainable  for  words  imputing  crime, 
though  spoken  by  way  of  interrogation  only,  if, 
according  to  the  natural  and  fair  construction  of 
the  language  used,  in  connection  with  the  cir- 
cumstances, the  hearers  had  a  right  to  believe  that 
defendant  intended  to  chai-ge  plaintiff  with  the 
commission  of  a  criminal  offense.— Gor ham  v. 
Ives,  114. 

To  say  that  a  person  is  a  "returned  convict," 
thereby  imputing  an  offense  punishable  by  trans- 
portation, is  actionable  jjer  se;  as,  although  the 
punishment  has  been  suffered,  the  obloquy  re- 
mains.— Fowler  v.  Dowdney,  114. 

Words  imputing  a  crime  in  another  state, 
which  is  not  punishable  in  the  state  in  which 
such  words  were  spoken,  may  be  actionable  in 
the  latter  state. — Van  Ankin  v.  Westfall,  113. 

Words  imputing  crime,  but  spoken  and  under- 
stooa  with  reference  to  transactions  which  were 
known  not  to  amount  to  the  charge  the  words 
import,  are  not  actionable. — Van  Rensselaer  v. 
Dole,  115. 

To  say  of  a  man  that  he  had  the  venereal  dis- 
ease, and,  having  married,  communicated  it  to 
his  wife,  ana  that  he  was  "the  guilty  one, " 
does  not  necessarily  import  the  commission  by 
him  of  the  criminal  offense  of  adultery  or  forni- 
cation, so  as  to  render  the  words  actionable  as 
imputing  such  offense. — Golderman  v.  Stearns, 
UK. 

To  say  of  a  man  that  he  has  the  venereal  dis- 
ease is  actionable,  as  tending  to  exclude  him  from 
society ;  but  if,  when  the  charge  was  made,  he 
had  such  disease,  the  truth  of  the  charge  is  a 
justification. — Golderman  v.  Stearns,  116. 

Imputing  unchastity  to  a  woman  not  actionable 
at  common  law  unless  special  damage  be  shown. 
— Roberts  v.  Roberts,  2^;. 

Words  not  in  themselves  actionable  may  be 
actionable  as  affecting  the  person  of  whom  they 
are  spoken  in  his  office,  profession,  trade,  em- 
ployment, etc.— Forward  v.  Adams,  lltj;  Ireland 
V.  McGarvish,  lis;  Secor  v.  Harris,  119. 


Ground  of  action  for  speaking  words  not  ac- 
tionable in  themselves,  but  only  in  consequence 
of  the  special  character  of  the  party  of  whom 
they  are  spoken,  is  that  such  party  is  disgraced 
or  injured  in  his  profession  or  trade,  or  exposed 
to  the  hazard  of  losing  his  office  in  consequence 
of  the  slanderous  words;  not  that  his  general 
reputation  is  affected  by  them.  —  Forward  v. 
Adams,  116. 

Words  not  actionable  in  themselves,  but  only 
in  consequence  of  the  special  character  of  the 
person  of  whom  they  are  spoken,  are  not  actiona- 
ble when  spoken  after  such  person  has  ceased  to 
sustain  that  special  character.  —  Forward  v. 
Adams,  116. 

To  say  of  a  person  formerly  appointed  to  ne- 
gotiate a  treaty  with  Indians  that  he  bribed  them 
to  sign  the  treaty  is  not  actionable  except  as 
affecting  him  in  such  office,  and  no  action  can  be 
maintained  therefor  where  the  office  had  expired 
before  the  words  were  spoken.  —  Forward  v. 
Adams,  116. 

To  render  words  actionable  on  account  of  the 
official  or  professional  character  of  the  person  of 
whom  they  are  spoken,  it  is  not  enough  that  they 
tend  to  injure  him  in  his  office  or  calling;  they 
must  relate  to  his  official  or  business  character, 
and  impute  misconduct  to  him  in  that  character. 
— Ireland  v.  McGarvish,  118. 

To  charge  a  physician  with  gross  ignorance  and 
unskillfulness  in  his  profession,  though  in  but  a 
single  act,  is  actionable  per  se;  damage  is  pre- 
sumed from  the  very  nature  of  the  charge. — Secor 
V.  Harris,  119. 

Damages  caused  by  the  repetition  of  defama- 
tory words,  without  proper  occasion  for  repeating 
them,  are  not  the  natural  and  legal  consequence 
of  the  first  speaking  of  them,  and  the  person  so 
repeating  them  is  alone  liable  for  such  damages. 
— Terwilliger  v.  Wands,  121. 

Illness  and  inability  to  labor,  caused  by  the 
effect  on  one's  mind  of  defamatory  words  re- 
ported to  have  been  spoken  of  him,  are  not  spe- 
cial damages  for  which  he  can  maintain  an  ac- 
tion of  slander. — Terwilliger  v.  Wands,  121. 

Only  injuries  affecting  the  reputation  consti- 
tute such  special  damage  as  will  sustain  an  ac- 
tion for  speaking  words  not  in  themselves  action- 
able. The  words  must  in  fact  disparage  the  char- 
acter, and  this  disparagement  must  be  evidenced 
by  some  positive  loss  arising  therefrom,  directly 
and  legitimately,  as  a  fair  and  natural  result. — 
Terwilliger  v.  Wands,  121. 

Loss  of  membership  in  religious  society,  to 
which  no  material  advantages  are  attached,  not 
such  special  damage  as  will  sustain  action  for 
speaking  words  not  actionable  in  themselves. — 
Roberts  v.  Roberts,  28. 

Action  maintainable  for  words  spoken  of  plain- 
tiff by  defendant,  whereby  a  contract  of  mar- 
riage between  plaintiff  and  another  person  was 
broken  off  by  the  latter,  although  such  words  are 
not  in  themselves  actionable,  and  although  plain- 
tiff has  a  remedy  against  such  other  person  for 
breach  of  the  contract. — Moody  v.  Baker,  44. 

No  action  can  be  maintained  for  the  speaking 
of  defamatory  words  to  the  person  of  whom  they 
are  spoken  only,  no  other  person  being  present 
or  within  hearing. —Terwilliger  v.  Wands,  124; 
SheffiU  V.  Van  Deusen,  130. 

That  the  defamatory  words  were  spoken  in  a 
public  place  is  immaterial.  —  SheffiU  v.  Van 
Deusen,  130. 

Quei-y,  whether  lunatic  liable  for  slander?— 
Morain  v.  Devlin,  51,  note. 

Confidential  advice  or  communication  to  persons 
asking  therefor,  or  having  a  right  to  expect  it, 
not  ground  for  action  of  slander  or  libel  unless 
malice  in  fact  be  shown.— Bromage  v.  Prosser, 
129. 

As  to  slanderous  statements  made  by  parties, 
counsel,  or  witnesses  in  the  course  of  judicial 
proceedings,  the  privilege  is  absolute,  however 
malicious  the  intent,  or  however  false  the  charge 
mav  have  been. — Moore  v.  Manufacturers'  Nat. 
Bank,  14.5. 

But  the  privilege  does  not  extend  to  slanderous 
publications  plainly  irrelevant  and  impertinent. 


296 


INDEX. 


voluntarily  made,  and  which  the  party  making 
them  could  not  reasonably  have  supposed  to  be 
relevant.— Moore  v.  Manufacturers'  Na  .  Bank, 
145. 

A  communication  affecting  the  character  of  a 
servant,  made  by  his  former  master  to  another 
whose  service  he  is  about  to  enter,  although 
made  voluntarily,  if  in  good  faith,  without  mal- 
ice, in  the  belief  that  it  is  done  in  the  discharge 
of  a  duty,  and  with  a  full  conviction  of  its  truth, 
is  privileged,  and  damages  cannot  be  recovered 
therefor  without  a  finding  of  malice.— Fresh  v. 
Cutter,  136. 

But  the  speaking  of  such  words,  though  with 
a  belief  in  their  truth,  to  a  person  other  than 
the  new  master,  would  not  be  privileged.— Id. 

Malice  in  law  is  inferred,  ordinarily,  from  the 
sneaking  of  slanderous  words,  wrongfully  and  in- 
tentionally; but  where,  on  account  of  the  cause 
of  speaking,  it  is  prima  facie  excusable,  malice 
in  fact  must  be  proved  by  plaintiff.— Bromage 
V.  Prosser,  128. 

Malice  is  implied   as  well   from  oral   as   from 
written  defamation,  where  the  communication  i 
not  privileged.— Byam  v.  Collins,  139. 

Slander  against  a  married  woman,  of  such  a 
kind  as  to  cause  injury  to  her  husband's  business, 
as  a  natural  consequence,  gives  the  hus,band  a 
cause  of  action.— Van  Horn  v.  Van  Horn,  110. 

In  an  action  for  slander  in  speaking  words 
which  are  slanderous  oulj^  by  reference  to  facis 
and  circumstances  set  forth  in  plaintiiS's  decla- 
ration, the  colloquium  or  averment  that  the 
words  were  spoken  of  and  concerning  such  cir- 
cumstances must  extend  to  the  whole  of  the 
prefatory  inducement  necessary  to  render  the 
words  actionable.  An  omission  in  this  respect 
cannot  be  aided  by  mere  innuendoes,  nor  by  aver- 
ments that  defendant  had  knowledge  of  the  par- 
ticular circumstances  stated. —  Brettun  v.  An- 
thony, 147. 

A  plea  in  an  action  for  slander,  which  merely 
avers  that  defendant  spoke  the  words  to  a  neigh- 
bor who  was  about  to  employ  plaintiif,  in  the 
bona  fide  performance  of  a  duty,  without  malice, 
and  with  an  honest  belief  that  they  were  true,  is 
bad  as  a  plea  of  privileged  communication,  be- 
cause not  sufQciently  specific. — Fresh  v.  Cutter, 
136. 

Where,  on  the  evidence  in  an  action  for  slan- 
der for  words  spoken  in  answer  to  an  inquiry, 
it  is  a  question  of  fact  whether  defendant  under- 
stood the  person  making  such  inquiry  as  asking 
for  information  to  regulate  his  own  conduct,  this 
should  be  submitted  to  the  jury  for  consideration 
before  the  question  of  malice  in  answering. — 
Bromage  v.  Prosser,  128. 

Evidence  of  the  truth  of  the  charge  for  making 
which  an  action  for  slander  is  brought  is  not 
admissible  in  mitigation  of  damages. — VanAnkin 
V.  Westfall,  118. 

Action  maintainable  for  untrue  statement  dis- 
paraging goods  of  another,  made  without  lawful 
occasion,  and  causing  him  special  damage. — 
"Western  Counties  Manure  Co.  v.  Lawes  Chemical 
Manure  Co.,  11. 

SLANDER  OF  TITLE. 

To  maintain  an  action  for  slander  of  title,  the 
words  must  not  only  be  false,  but  must  be  ut- 
tered malicioHsly,  and  be  followed  as  a  natural 
and  legal  consequence  by  pecuniary  damage  to 
plaintiff,  which  must  be  specially  alleged  and 
proved. — Kendall  v.  Stone,  149. 

Although  one  who  has  entered  into  a  contract 
to  purchase  land  is  influenced  to  desire  to  with- 
draw therefrom  by  statements  as  to  the  vendor's 
title  made  by  a  third  person,  if  the  vendor  as- 
sents to  a  rescission  of  the  contract,  he  cannot 
recover  damages  from  the  third  party  for  the 
loss  of  the  sale,  as  it  is  not  the  legal  consequence 
of  the  words  spoken. — Kendall  v.  Stone,  149. 

SPRING  GUNS. 

Owner  of  land  planting  spring  guns  in  it  liable 
to  person  injured    thereby,    while    merely  stray- 


ing on  the  land.— Gramlich   V.   Wurst,    5;  Clark 
V.  Chambers,  33,  84. 

Springs. 

See  Siii)terranean  Waters. 

SQUIB. 

Action  maintainable  for  personal  injury  from 
lighted  squib  first  thrown  by  defendant,  al- 
thougn  injm\y  would  not  have  happened  without 
intervention  "of  others. — Clark  v.  Chambers,  33; 
Vandenburgh  v.  Truax,  37 ;  Morain  v.  Devlin,  50. 

Statute  of  Frauds. 

See  Frauds,  Statute  of. 


STATUTES. 

Action  maintainable  for  violation  of  statutory 
duty. — Willy  v.  Mulledy,  16. 

A  statute  which  authorizes  a  thing  to  be  done 
which  can  be  done  without  creating  a  nuisance 
will  not  be  deemed  to  authorize  a  nuisance. — 
Sawyer  v.  Davis,  186. 

Statutes  of  one  state  can  have  no  operation  in 
another  where  similar  statutes  do  not  exist;  but 
a  right  of  action  given  by  a  statute  of  one  state 
may  be  enforced  in  the  courts  of  another  state 
having  a  substantially  similar  statute,  as  if  such 
right  of  action  existed  by  the  common  law  of 
both  states.— Leonard  v.  Columbia  Steam  Nav. 
Co.,  265. 

No   presumption     that     statutes     of   different 
states  are   the   same. — Leonard   v.    Steam   Nav.  > 
Co.,  266. 

STEAM-BOILERS. 

Owner  of  land  not  liable  for  injuries  caused  by 
the  explosion  of  a  steam-boiler  used  by  him 
on  his  premises,  without  proof  of  want  of  due 
care  and  skill  on  the  part  of  him  or  his  agent. — 
Marshall  v.  Welwood,  221. 


STEAM- WHISTLES. 

Use  of  steam-whistles  by  employers  for  purpose 
of  giving  notice  to  their  workmen,  although  such 
as  to  cause  injury  to  individuals  which  a  court 
of  equity  would  restrain,  may  be  authorized  by 
legislature,  subject  to  regulation  by  municipal 
authorities. — Sawyer  v.  Davis,  186. 

SUBORNATION    OF    PERJURY. 

Action  maintainable  against  one  who  suborns 
witnesses  to  swear  falsely  to  defamatory  state- 
ments concerning  another,  in  a  suit  to  which 
neither  of  them  is  a  party.— Rice  v.  Coolidge,  13. 

It  seems  that  in  an  action  for  suborning  wit- 
nesses to  swear  falsely  to  defamatory  state- 
ments concerning  plaintiff,  the  words  spoken  or 
written  need  not  be  set  out  with  the  fullness  re- 
quired in  actions  of  slander  and  libel;  it  is  suf- 
ficient to  set  out  their  substance. — Rice  v.  Cool- 
idge, 15. 

SUBTERRANEAN  WATERS. 

Digging  on  one's  own  land,  although  it  inter- 
cepts percolating  waters  which  supply  the  spring 
of  another,  is  not  a  cause  of  action.— Barkley  v. 
Wilcox,  172. 

Opening  wells  and  drawing  water  therefrom, 
not  a  ground  for  action  by  owner  of  adjoining 
land,  although  the  supply  of  water  to  his  wells 
is  thereby  diminished.— Ocean  Grove  Camp 
Meeting  Ass'n  v.  Commissioners  of  Asbury 
Park^  26. 


INDEX. 


297 


SURFACE  WATERS. 

Owner  of  land  has  an  absolute  property  in  sur- 
face water  thereon  before  it  leaves  the  land  and 
becomes  part  of  a  definite  water-course. — Bark- 
ley  V.  Wilcox,  172. 

The  owner  of  land,  which  is  so  situated  that 
the  surface  waters  from  the  land  above  naturally 
descend  upon  and  pass  over  it,  may  in  good  faith, 
and  for  the  purpose  of  building  upon  and  improv- 
ing his  land,  fill  and  grade  it,  although  thereby 
the  water  is  prevented  from  reaching  it,  and  is 
detained  upon  the  land  above.— Barkley  v.  Wil- 
cox, 170. 

SWINDLING. 

Words  imputing  charge  of  swindling  do  not 
necessarily  imply  a  crime,  and  are  not  actiona- 
ble per  86. — Chase  v.  Whitlock,  113. 


TAXATION. 

Assessors  of  taxes  act  judicially  in  fixing  the 
value  of  taxable  property,  where  it  is  not 
sworn  to  as  authorized  by  law,  and  they  are  not 
liable  to  a  civil  action  by  one  over  whose  person 
and  property  they  had  jurisdiction  for  the  pur- 
pose of  assessment,  for  failing  to  make  any  al- 
lowance or  deduction  on  account  of  an  exemption 
of  a  certain  amount  to  which  he  was  entitled, 
or  for  assessing  his  property  at  a  higher  rate 
than  that  of  others.— Weaver  v.  Devendorf,  211. 

Tenancy  in  Common. 

See  Joint  Tenancy  and  Tenancy  in  Common. 
TENEMENT-HOUSES. 

Owner  liable  for  defective  condition,  although 
insane. — Morain  v.  Devlin,  50. 

Failure  of  owner  of  tenement-house  to  comply 
with  statute  requiring  fire-escapes  to  be  provid- 
ed therefor  is  a  breach  of  duty  for  which  he  is 
liable  to  a  tenant  for  damages  thereby  caused 
to  the  latter.— Willy  v.  MuUedy,  16. 

TORT. 

No  accurate  and  perfect  definition  of  word 
"tort.  "—Rich  v.  New  York  Cent.  &  H.  R.  R. 
Co.,  58. 

Violation  of  legal  right  or  legal  duty  necessary 
to  constitute  a  tort. — Guest  v.  Reynolds,  1;  Mil- 
ler V.  Woodhead,  4;  Gramlich  v.  Wurst,  5;  Rich 
V.  New  York  Cent.  &  H.  R.  R.  Co.,  60. 

Violation  of  merely  moral  right  or  duty  does 
not  constitute  a  tort. — Lamb  v.  Stone,  8. 

Wrongful  intent  not  essential  to  constitute  tort, 
in  cases  of  trespass. — Bessey  v.  Olliot,  49; 
Weaver  v.  Ward,  49;  Guille  v.  Swan,  49. 

No  liability  in  tort  for  purely  accidental  inju- 
ries.— Brown  v.  Kendall,  51. 

Action  of  tort  maintainable  for  breachof  right 
or  duty  created  by  law,  though  its  performance 
has  been  assumed  by  contract. — Baltimore  City 
Pass.  Ry.  Co.  v.  Kemp,  54. 

Violation  of  duty  of  care  on  the  part  of  a  com- 
mon carrier  of  passengers,  towards  a  passenger, 
is  a  tort.  —  Baltimore  City  Pass.  Ry.  Co.  v. 
Kemp,  54. 

In  cases  of  contract,  where  there  is  no  legal 
duty  independent  of  the  contract,  one  not  in 
privity  with  a  party  to  the  contract  cannot  re- 
cover against  him  in  tort  for  an  injury  involving 
a  breach  of  the  contract.  —  Winterbottom  v. 
Wright,  62. 

Where,  in  cases  of  contract,  the  law  imposes 
a  duty  towards  third  persons  who  are  not  par- 
ties to  the  contract,  such  persons  may  recover  in 
an  action  of  tort. — Thomas  v.  Winchester,  65. 

Dealer  in  medicines  selling  as  a  harmless  rem- 
■edy  a  poison  of  similar  appearance,  liable  for  in- 
juries caused   thereby  to   a  patient   to  whom   it 


was  administered,  although  there  was  no  privity 
between  them. — Thomas  v.  Winchester,  65. 

Where,  upon  a  breach  of  contract,  there  is  not 
merely  a  broken  promise,  but  also  trust  betrayed 
and  confidence  abused, — constructive  fraud,  or  a 
negligence  that  operates  as  such, — such  fraud  or 
negligence  makes  the  breach  of  contract  actiona- 
ble as  a  tort.— Rich  v.  New  York  Cent.  &  H.  R. 
R.  Co.,  60. 

Omission  to  perform  a  contract  obligation  may 
constitute  a  tort,  where  the  omission  is  also  an 
omission  of  a  legal  duty,  even  though  such  legal 
duty  arises  from  circumstances  not  elements  of 
the  contract,  but  merely  connected  with  it  and 
dependent  upon  it.— Rich  v.  New  York  Cent.  & 
H.  R.  R.  Co.,  56. 

It  seems  that  one  who  procures  another  to  break 
a  contract  by  the  latter  with  a  third  party  is  re- 
sponsible for  the  breach  only  where  malice  to 
such  third  person  is  shown,  giving  a  distinct 
cause  of  action  for  the  malice  which  caused  the 
breach  of  contract  resulting  in  damages  to  him. — 
Van  Horn  v.  Van  Horn,  110. 

TREES. 

A  verbal  contract  by  the  owner  of  land  for  the 
sale  of  trees  standing  thereon,  to  be  cut  and  re- 
moved by  the  purchaser,  gives  the  lattfer  an  im- 
plied license  to  enter  for  that  purpose ;  but  such 
license  is  revocable  at  any  time,  except  as  to  an 
entry  for  the  purpose  of  removing  trees  cut  be- 
foi'e  the  revocation. — Giles  v.  Simonds,  157. 

Trees  and  vines,  although  planted  merely  for 
ornament  or  luxury,  are  entitled  to  protection 
by  injunction  from  injury  by  destructive  vapors. 
— Campbell  v.  Seaman,  164. 

One  cutting  timber  on  land  of  another,  though 
without  intent  to  trespass,  and  by  mistake  as  to 
the  line  of  division,  is  liable  as  a  trespasser. — 
Hobart  v  Hagget,  195. 

TRESPASS. 

An  entry  upon  land  of  another  without  his  per- 
mission, express  or  implied,  or  the  license  or  au- 
thority of  law,  constitutes  a  trespass,  for  which 
damages  are  recoverable,  though  merely  nominal. 
—Hatch  V.  Donnell,  150;  Newkirk  v.  Sabler,  151. 

Owner  of  domestic  animals  liable  for  injuries 
committed  by  them  while  trespassing  on  the  close 
of  another,  irrespective  of  his  knowledge  of  their 
vicious  propensities;  but  not  liable  for  injuries 
by  them  unless  they  were  trespassing,  or  he  has 
knowledge  of  their  vicious  propensities.  —  Van 
Leuven  v.  Love,  152. 

One  or  two  adjoining  proprietors  upon  whose 
land  cattle  stray  from  the  highway,  from  which 
they  pass,  through  a  defect  in  that  portion  of 
the  division  fence  which  he  was  by  law  bound 
to  keep  in  repair,  upon  the  land  of  the  other, 
is  not  liable  to  the  latter  in  trespass  there- 
for, although  he  would  be  liable  for  such  tres- 
pass by  cattle  rightfully  on  his  land. — Lawrence 
V.  Combs,  163. 

The  owner  of  an  ox  which,  while  being  driven 
along  the  highway,  escapes  and  enters  premises 
of  another  adjoining  the  highway,  is  not  liable 
for  the  damages  thereby  done,  unless  there  was 
negligence  on  his  part. — Tillett  v.  Ward,  162. 

To  maintain  trespass  de  bonis  asportatis,  act- 
ual foi*cibie  dispossession  of  property  is  not  nec- 
essary; any  unlawful  interference  with  or  exer- 
cise of  acts  of  ownership  over  property,  to  the 
exclusion  of  the  owner,  will  constitute  a  tres- 
pass, though  there  was  no  wrongful  intent,  and 
the  property  was  taken  accidentally  or  by  mis- 
take.—Dexter  V.  Cole,  195. 

Plaintiff's  sheep,  running  at  large  in  the  high- 
way, became  mixed  with  sheep  which  defendant 
was  driving  to  market.  Defendant  separated  all 
but  four  of  them,  which  he  drove  to  market  with 
his  flock.  Held,  that  he  was  liable  in  trespass. 
—Dexter  v.  Cole,  195. 

Action    maintainable    for   a  trespass  without 
wrongful    intent. — Bessev   v.  Olliot.  49;  Weaver 
V.  Ward,  49;  Guille  v.  Swan,  49;  Hobart  v.  Hag 
get,  195. 


298 


INDEX. 


One  cutting  timber  on  land  of  another,  though 
without  intent  to  trespass,  and  by  mistake  as  to 
the  line  of  division,  is  liable  as  a  trespasser. — 
Hobart  v.  Hasget,  195. 

One  has  no  right  to  enter  upon  land  of  another 
for  the  purpose  of  taking  away  a  chattel  thereon 
which  belongs  to  him,  where  there  is  no  license, 
express  or  implied,  nor  any  legal  excuse,  as  on 
the  ground  of  necessity,  even  though  such  chat- 
tel is  unlawfully  detained  there. — Newkirk  v. 
Sabler,  151. 

Entry  upon  lands  of  another  excusable,  if  nec- 
essary for  preservation  of  life. — Newkirk  v.  Sa- 
bler, 151. 

Entry  on  land  of  another  excusable,  if  neces- 
sary to  pi-event  irremediable  loss  or  destruction 
of  property  of  third  person. — Newkirk  v.  Sabler, 
151 ;  Proctor  v.  Adams,  159. 

Entry  on  lands  of  another  justified  by  license, 
express  or  implied,  though  by  parol.— Newkirk 
V.  Sabler,  151 ;  Giles  v.  Simonds,  159. 

Entry  on  lands  of  another  excused  by  neces- 
sity. —Newkirk  v.  Sabler,  151 ;  Proctor  v.  Adams, 
159;  Campbell  v.  Race,  160. 

Breaking  of  inner  door,  by  officer  to  serve  pro- 
cess, justifiable. — Williams  v.  Spencer,  161. 

The  abuse  of  a  license  to  enter  premises  given 
by  law  makes  the  party  a  trespasser  ab  initio; 
but  otherwise  where  the  license  to  enter  was 
given  by  tne  person  in  possession. — Six  Carpen- 
ters' Case,  155. 

One  going  into  a  public  tavern  and  there  or- 
dering and  drinking  wine,  does  not,  by  refusing 
to  pay  therefor,  become  a  trespasser  ab  initio; 
mere  not  doing  is  no  trespass. — Six  Carpenters' 
Case,  155. 

Trespass  to  land  an  injury  to  the  possession. — 
Halligan  v.  Chicago  &  R.  I.  K.  Co.,  154. 

The  gist  of  the  action  of  trespass  to  lands  is 
the  injury  to  the  possession,  and  he  only  can 
maintain  the  action  who  either  has  or  is  entitled 
to  the  possession.  Where  the  land  is  in  the  act- 
ual and  exclusive  occupation  of  the  owner's  ten- 
ant, the  owner  cannot  maintain  the  action. — Hal- 
ligan V.  Chicago  &  R.  I.  R.  Co.,  154. 

Trespass  to  personal  property  an  injury  to  the 
right  of  possession. — Lunt  v.  Brown,  196. 

A  person  cannot  maintain  trespass  for  taking 
personal  property,  unless,  at  the  time  of  the  tak- 
ing, he  had  either  actual  or  constructive  posses- 
sion or  a  right  to  the  immediate  possession. — 
Lunt  V.  Brown,  196. 

Where  personal  property  is  left  in  the  posses- 
sion of  another  under  an  agreement  for  a  specified 
time,  the  owner  cannot  maintain  trespass  against 
a  third  person  for  taking  such  property  during 
such  time. — Lunt  v.  Brown,  195. 

Trespass  maintainable  by  owner  of  a  dog  for 
the  killing  of  it,  although  it  was  not  at  the  time 
in  his  possession,  but  loaned  to  another. — White 
V.  Brantley,  194. 

Action  maintainable  by  one  tenant  in  common 
against  another  upon  an  actual  ouster.  —  Murray 
V.  Hall,  157. 

A  single  trespass  may  be  committed  on  several 
closes,  and  one  action  maintained  therefor  as 
one  trespass. — Halligan  v.  Chicago  &  R.  L  R. 
Co.,  154. 

TRESPASSERS. 

Not  entitled  to  redress  for  injuries  negligently 
inflicted,  unless  some  legal  duty  towards  them  is 
violated. — Gramlich  v.  Wurst,  5';  Rounds  v.  Dela- 
ware, L.  &  W.  R.  Co.,  237. 

Trespasser  upon  the  cars  of  a  railroad  train 
is  entitled  to  be  protected  against  unnecessary 
injury  by  the  railroad  company  or  its  servants 
in  exercising  the  right  of  removing  him.— Rounds 
V.  Delaware,  L.  &  W.  R.  Co.,  239. 

Occupant  of  land  lawfully  making  excavation 
therein  in  ordinary  manner,  not  near  highway, 
not  liable  for  injuries  to  trespasser  falling  into 
excavation. — Gramlich  v.  Wurst,  5. 

Trover. 

See  Conversion  of  Personal  Profertii. 


TRUSTEE  PROCESS. 

Trustee  entitled  to  equitable  set-off  for  ad- 
vances made  to  or  debts  paid  for  principal  debtor 
in  good  faith.— Lamb  v.  Stone,  10. 


UNDERTAKERS. 

The  business  of  an  undertaker  will  not  be  re- 
strained by  injunction  at  the  suit  of  an  owner 
of  premises  adjoining  the  place,  because  such 
business  is  an  offense  or  a  nuisance  to  him,  or 
destructive  to  his  comfort,  or  his  enjoyment  of 
his  home,  unless  the  acts  complained  of  are  of  such 
a  nature  as  to  affect  all  reasonable  persons  similar- 
ly situated.— Rogers  v.  Elliott,  177. 


Vendor  and  Vendee. 

See  Sale. 

VIEW. 

Obstruction  of  light,  air,  and  view  by  owner  of 
adjoining  land  is  not  a  ground  of  action  unless  ad- 
verse right  to  the  enjoyment  of  such  privileges 
has  been  acquired. — Guest  v.  Reynolds,  1. 

VOID  PROCESS. 

Not  a  protection  to  officer.— Gelzenleuchter  v. 
Niemeyer,  88. 

Voters. 

See  Elections  and  Voters. 


WAREHOUSEMEN. 

A  statement  by  a  warehouseman,  in  a  circular 
soliciting  patronage,  that  the  exterior  of  bis 
warehouse  is  fire-proof,  is  the  statement  of  a  mat- 
ter of  fact,  not  a  mere  expression  of  opinion,  and 
if  made  by  him  with  knowledge  that  it  was 
false,  and  with  intent  to  deceive,  a  person  in- 
duced thereby  to  store  in  the  warehouse  proper- 
ty which  is  destroyed  by  fire  communicated  to 
portions  of  the  exterior  which  are  not  fire-proof 
may  recover  from  the  warehouseman  for  the  los» 
so  incurred. — Hickey  v.  Morrell,  260. 


Warrant. 


See  Process. 


WATERS  AND  WATER- 
COURSES. 

Uniform  or  uninterrupted  flow  not  essential  to 
constitute  a  water-course. — Barkley  v.  Wilcox, 
170. 

One  of  several  owners  of  mills  and  mill  priv- 
ileges on  the  same  dam  is  entitled  to  his  propor- 
tion of  the  whole  stream  at  the  dam,  undivided 
and  undiminished  in  its  natural  flow,  and  may 
restrain  the  other  owners  by  injunction  from 
drawing  from  the  head  of  the  pond  any  part  of 
the  water,  even  a  part  less  than  their  proportion. 
— Webb  V.  Portland  Manuf'g  Co.,  19. 

To  an  action  by  one  of  several  owners  of  mills 
and  privileges  on  the  same  dam,  to  restrain  the 
other  owners  from  drawing  water  from  the  head  of 
the  pond,  it  is  no  answer  that  defendants  have 
improved  the  supply  of  water  to  the  pond  by  a 
reservoir  higher  up  the  stream. — Webb  v.  Port- 
land Manuf'g  Co.,  19. 

As  against  a  lower  riparian  owner  on  a  natural 
water-course,  an  upper  riparian  owner  of  land 
on  both  sides  of  the  stream  has  no  right  to  de- 
tain such  surplus  of  the  waters  thereof  as  he  does 
not  require  for  present  use,  until  they  may  ba 
wanted  by  him  in  a  dry  season. — Clinton  v.  My- 
ers, 172. 


INDEX. 


299 


It  is  immaterial  that  such  detention  of  the 
water  makes  the  lower  riparian  owner's  rights 
more  valuable,  if  he  insists  upon  his  legal  right 
to  the  water  as  it  would  naturally  flow,  and  such 
right  is  of  any  value  to  him.— Clinton  v.  Myers, 
172. 

In  time  of  drought,  riparian  owner  may  detain 
the  water  of  the  stream  by  a  dam  for  such  time 
as  necessary  to  raise  a  head  sufficient  to  enable 
him  to  use  the  water  for  the  purpose  of  his  ma- 
chinery, if  the  machinery  is  such  as  is  adapted 
to  the  power  of  the  stream  at  its  usual  stage. — 
Clinton  v.  M^'ers,  174. 

The  pollution  of  a  stream  of  water,  so  as  to 
prevent  the  use  of  it  for  any  of  the  reasonable 
and  proper  purposes  to  which  running  water  is 
usually  applied,  is  an  infringement  of  the  rights 
of  other  riparian  owners,  and  creates  a  nuisance 
which  will  be  enjoined  at  the  suit  of  those  in- 
jured.— Merrifield  v.  Lombard,  175. 

Action  maintainable  for  injuries  from  breach 
of  statutory  duty  by  defendants  to  maintain 
works  to  keep  out  or  carry  off  water,  that  being 
the  substantial  cause  of  the  mischief,  although 
wrongful  acts  or  negligence  of  third  persons  in- 
creased or  contributed  to  the  damage. — Clark  v. 
Chambers,  35. 

Action  maintainable  for  the  carrying  away 
of  a  dam,  caused  by  the  giving  way  of  a  dam  of 
defendant  above  it  on  the  same  stream,  in  con- 
sequence of  his  negligence,  although  the  volume 
and  force  of  the  sti'eam  were  materially  in- 
creased by  the  giving  way  of  another  dam  be- 
tween them. — Lowery  v.  Manhattan  Ry.  Co.,  40. 

Action  maintainable  for  injiiries  caused  by 
horses  taking  fright  at  a  stream  of  water  allowed 
by  defendants  to  spout  up  in  the  road,  and  fall- 
ing into  a  ditch  constructed  in  the  road  by  others 
as  contractors  for  a  sewer,  and  negligently  left 
by  them  unfenced. — Clark   v.  Chambers,  34. 

See  Subterranean  Waters;  Surface  Waters. 

Wells. 

See  Subterranean  Waters. 


WINDOWS. 

Obstruction  of  view  or  light  not  ground  of  ac- 
tion, unless  adverse  right  has  been  acquired. — 
Guest  v.  Reynolds,  1. 

Disturbance  of  privacy  by  overlooking  windows 
not  ground  of  action.— Guest  v.  Reynolds,  8; 
Miller  v.  Woodhead,  4. 

WITNESS. 

Testimony  of  experts  in  the  business  of  fire  in- 
surance not  admissible  on  the  question  of  the 
hazard  and  exposure  of  one  building  to  fire  from 


another,  as  dependent  on  the  distance  between 
them.— Milwaukee  &  St.  P.  Ry.  Co.  v.  Kellogg, 
41. 

Witness  not  liable  in  damages  for  evidence 
given  by  him  in  a  suit,  although  false,  by  which 
another  is  injured. — Mobile  Life  Ins.  Co.  v. 
Brame,  248. 

That  witness  swearing  falsely  is  protected  by 
his  personal  privilege  from  a  civil  suit  therefor 
does  not  exempt  the  person  suborning  him  from 
liability  to  one  defamed  thereby,  who  was  not  a 
party  to  the  action. — Rice  v.  Coolidge,  13. 

WORDS  AND  PHRASES. 

"Conversion"  is  an  unauthox-ized  assumption 
and  exercise  of  the  right  of  ownership  over 
goods  belonging  to  another,  to  the  exclusion  of 
the  owner's  rights. — Laverty  v.  Snethen,  197. 

Damnum  absque  injuria. — Gramlich  v.  Wurst, 
7;  Webb  v.  Portland  Manuf'g  Co.,  19:  Thurs- 
ton V.  Hancock,  26;  Winterbottom  v.  Wright,  (J5; 
Castle  V.  Houston,  134;  Campbell  v.  Seaman, 
164;  Clinton  V.  Myers,  174, 175 ;  Marshall  v.  Well- 
wood,  222. 

Damnum  cum  injuria.— liamb  v.  Stone,  9. 

Ex  jurenaturcB. — Webb  v.  Portland  Manuf'g 
Co.,  22. 

"Imprisonment"  includes,  besides  mere  loss  of 
freedom  to  go  where  one  pleases,  restraint  with- 
in limits  defined  by  an  exterior  will  or  power. — 
Bird  V.  Jones,  83. 

Injuria  sine  damno. — Dixon  v.  Clow,  18; 
Webb  V.  Portland  Manuf'g  Co.,  19. 

"Injury"  implies  something  more  than  damage. 
— Brown  v.  Kendall,  52. 

"Malice, "  in  common  acceptation,  means  ill- 
will  against  a  person ;  but,  in  its  legal  sense,  it 
means  a  wrongful  act  done  intentionally,  with- 
out just  cause  or  excuse. — Bromage  v.  Prosser, 
129. 

"Ordinary  care"  means,  in  general,  that  kind 
and  degree  of  care  which  prudent  and  cautious 
men  would  use,  such  as  is  required  by  the  exi- 
gency of  the  case,  and  such  as  is  necessary  to 
guard  against  probable  danger.  —Brown  v.  Ken- 
dall, 53. 

Per  my  et  per  tout.  —Thurston  v.  Hancock,  23. 

"Tort."  No  accurate  and  perfect  definition 
of  "tort."— Rich  v.  New  York  Cent.  &  H.  R. 
R.  Co.,  56. 

"Water-course."  A  natural  water-course  is  a 
natural  stream,  flowing  in  a  defined  bed  or 
channel,  with  banks  and  sides,  having  perma- 
nent sources  of  supply.  It  is  not  essential  that 
the  flow  should  be  uniform  or  uninterrupted. — 
Barkley  v.  Wilcox,  170. 

Writs. 

See  Certiorari;  Execution;  Iri^v/nctUm;  Pro- 
cess. 


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